..V
jV
Publications of the
Carnegie Endowment for International Peace
Division of International Law
Washington
THE
CLASSICS OF INTERNATIONAL LAW
edited by
James Brown Scott
President of the Institute of International Lazv
President of the American Institute of International Law
DE JURE BELLI AC PACIS
LIBRI TRES
By Hugo Grotius
Vol. I. A Photographic Reproduction of the Edition of 1646, with
a Portrait of Grotius.
Vol. II. A Translation of the Text, by Francis W. Kelsey, with
the collaboration of Arthur E. R. Boak, Henry A.
Sanders, Jesse S. Reeves, and Herbert F. Wright, with
an Introduction by James Brown Scott.
This volume with Volumc
1 constitules
No. 3 of 'The Classics
of lnterna-
tional Law'. A list of
the numhers
abeady published is given
at the end
oj ihis volumt.
i.nfernal.
DE JURE BELLI AC PACIS
LIBRI TRES
BY
HUGO GROTIUS
VOLUME TWO
THE TRANSLATION
BOOK III
By Francis W. Kelsey
WITH THE COLLABORATION OF
ARTHUR E. R. BOAK, HENRY A. SANDERS,
JESSE S. REEVES and HERBERT F. WRIGHT
AND AN INTRODUCTION BY
JAMES BROWN SCOTT
OXFORD : AT THE CLARENDON PRESS
LONDON : HUMPHREY MILFORD
1925
Printed in England
At the Oxford University Press
By John Johnson
Printer to the University
[424l
HUGO GROTIUS
ON
THE LAW OF WAR AND PEACE
BOOK III
^S^-2! s s 597
CHAPTER I
GENERAL RULES FROM THE LAW OF NATURE REGARDING WHAT
IS PERMISSIBLE IN WAR ; WITH A CONSIDERATION
OF RUSES AND FALSEHOOD
I. — The order of treatment in the discussion which follows
We have considered both those who wage war and on what
grounds war may be waged. It follows that we should determine
what is permissible in war,1 also to what extent, and in what ways,
it is permissible.
What is permissible in war is viewed either absolutely or in
relation to a previous promise. It is viewed absolutely, first from
the standpoint of the law of nature, and then from that of the law
of nations. Let us see, then, what is permissible by nature.
II. — The first rule : In war things which are necessary to attain the
end in view are permissible. This is explained
1. First, as we have previously said on several occasions, in
a moral question things which lead to an end receive their intrinsic
value from the end itself. In consequence we are understood to
have a right to those things which are necessary for the purpose
of securing a right, when the necessity is understood not in terms of
physical exactitude but in a moral sense. By right I mean that
which is strictly so called, denoting the power of acting in respect to
society only.
Hence, if otherwise I cannot save my life, I may use any degree
of violence to ward off him who assails it, even if he should happen
to be free from wrong, as we have pointed out elsewhere. The reason is
that this right does not properly arise from another's wrong, but from
the right which nature grants me on my own behalf.
2. Furthermore, [425] I can also take possession of another's
property from which an imminent danger threatens me, without
1 It has been well said by Augustine, Letters, lxx [ccxx. 12], To Count Boniface: 'May you, in
war itself, if it is still necessary for you to engage in war, cleave to the faith, and seek peace.' Again
in Letiers, ccv [clxxxix. 6] : ' Be therefore a man of peace, even when engaged in war.'
Regarding the maintenance of justice in waging war, [437] there is an excellent discourse of
Belisarius to his soldiers in Procopius, Vandalic War, I [I. xvij. Orosius, Book VII [VII. xxi], says :
' Behold in what fashion civil wars are waged by Christian kings in Christian ages, when they cannot
be avoided.' The same author [VII. xxiii] refers thus to Theodosius : ' Let them mention some one
war, from the time of the founding of the city, which was undertaken by reason of so righteous a neces-
sity, and concluded with so divine a felicity, that battle did not exact great slaughter cr victory a
bloody vengeance.'
1569-27 S S 2 599
Victoria,
De Iure
Belli,
no. 15.
[II. i. 3.]
Victoria,
De Iure
Belli,
nos. 18, 39,
and55-
600 On the Law of War and Peace [Booklll
taking account of the other's guilt ; yet not in such a way as to
become its owner (for this procedure is not adapted to that end),
but in order to guard it until adequate security has been given for
ii. ii. io. my safety. This point also we have treated elsewhere.
Thus I have by nature a right to seize property of mine which
another is holding ; and if such seizure is too difficult I have the right
to seize something else of equal value, as in the case of recovering
a debt. From these causes ownership also arises, because the equality
Syivester, which has been disturbed can in no other way be restored.
7um,\!1 3- Where therefore the punishment is just, all use of force
no. 10, necessary for the infliction of the penalty is likewise just ; and every-
thing which is a part of the penalty, as the destruction of property
by fire or by other means, is certainly within the limit of that which
is just and befits the crime.
III. — The second rule : A right is to be viewed as arising not only from
the origin of the war but alsofrom causes which subsequently develop
In the second place the fact must be recognized that our right
to wage war is to be regarded as arising not merely from the origin
of the war but also from causes which subsequently develop ; just
as in lawsuits a new right is often acquired by one party after suit has
been brought. Thus those who associate themselves with him who
assails me, either as allies or subjects, confer upon me the right to
protect myself against them also.
In like manner those who join in a war that is unjust, especially if
they can or ought to know that it is unjust, obligate themselves to
make good the expenses and losses incurred, because through their
guilt they cause the loss. Similarly, those who join in a war that
has been undertaken without a cause worthy of approval draw upon
themselves the desert of punishment, in a degree proportionate to the
[Repubik, injustice which lies in their action. For this reason Plato approves
47xb.i" °f war ' until the guilty are compelled, by the guiltless who have
suffered, to pay the penalty \
IV. — The third rule : Some things, which are not permissible according
to the purpose of a war, may follow therefrom without wrong ; a
precaution is added
i. In the third place, it must be observed that in addition to
victona, the right of action many things follow indirectly, and beyond the
no'.i7.' purpose of the doer,1 for which in and of themselves a right would
[ii. i. 4] not exist. We have explained elsewhere how this may occur in a case
* See on this point Thomas Aquinas, II. i, qu. 73, art. 8 ; Molina, tract. ii, disp. 121«
Chap. 1] Rules regarding what is Permissible in War 601
of self-defence. Thus in order to obtain what is ours, if we cannot
get that by itself, we have the right to accept more, subject to the
obligation, nevertheless, of restoring the value of the excess. Similarly
we may bombard a ship full of pirates, or a house full of brigands,
even if there are within the same ship or house a few infants, women,
or other innocent persons who are thereby endangered. Says
Augustine : ' A man is not guilty of homicide if he has built a wall
about his property and another is killed by the fall of it when trying
to make use of it.'
2. But, as we have admonished upon many occasions previously,
what accords with a strict interpretation of right is not always, or in
all respects, permitted. Often, in fact, love for our neighbour prevents
us from pressing our right to the utmost limit.
Wherefore we must also beware of what happens, and what we
foresee may happen, beyond our purpose, unless the good which our
action has in view is much greater than the evil which is feared, or,
unless the good and the evil balance, the hope of the good is much
greater than the fear of the evil. The decision in such matters must
be left to a prudent judgement, but in such a way that when in
doubt we should favour that course, as the more safe, which has
regard for the interest of another rather than our own. ' Let the
tares grow ', said the best Teacher, ' lest haply while ye gather up
the tares ye root up the wheat with them.' Said Seneca : ' To kill
many persons indiscriminately is the work of fire and desolation.'
History teaches us with how deep repentance Theodosius, on the
admonition of Ambrose, expiated such an unrestrained vengeance.
3. Further, if at times God does something of this kind, it is
not for us to take that as an example, in view of the most perfect
[426] right of dominion which He has over us, but which He has
not granted to us over one another, as we have noted elsewhere.
And yet God Himself, lord of men in His own right, is wont to spare
a community of evil men, however large, for the sake of a very few
good men ; in this He makes manifest His fairness as a judge, as the
conference of Abraham with God regarding Sodom clearly teaches us.
From these general rules we may learn how much is by nature
permissible against an enemy.
[II. xxi.
14.]
V. — What is permissible against those who furnish supplies to our
enemies is explained through distinctions
1. But there often arises the question, What is permissible
against those who are not enemies, or do not want to be called
enemies, but who furnish our enemies with supplies ? For we know
that this subject has been keenly debated in both ancient and modern
602
On the Law of War and Peace
[Book III
Procopius,
[On Bene-
fiis, VII.
xx.]
On Duties,
I. XXX
[144].
[II.ii.6.]
Dccretals,
V. vi. 6
and 17.
times, since some champion the relentlessness of warfare and others
the freedom of commercial relations.
2. First, we must make distinctions with reference to the
things supplied. There are some things, such as weapons, which are
useful only in war ; other things which are of no use in war, as those
which minister to pleasure ; and others still which are of use both in
time of war and at other times, as money, provisions, ships, and naval
equipment.1
Regarding the first class of things, the saying of Amalasuntha to
Justinian holds true, that he who supplies an enemy with things
necessary for warfare is on the side of the enemy.
Things of the second sort give rise to no complaint. Thus Seneca
says that he will do a favour to a tyrant, if the kindness will not give
to the tyrant greater powers for the ruin of all 2 nor strengthen the
powers which he has ; that is, a kindness which may be done to him
without harm to the state. In explaining this Seneca adds :
Money, by means of which a satellite may be kept in service, I shall not supply.
If he shall desire marbles and robes, that which his luxurious taste amasses will harm no
one ; soldiery and arms I shall not furnish. If, as a great favour, he seeks craftsmen of the
stage and things which may soften his savagery, I shall gladly proffer them. To him to
whom I would not send triremes or ships with bronze rams, I shall send pleasure craft,
and sleeping-barges, and other follies of kings who revel on the sea.
In the judgement of Ambrose, to be generous toward him who
conspires against his country is not approvable liberality.
3. Regarding things of the third sort, useful in both war and
peace, we must take into account the conditions of the war. For, if
I am unable to protect myself without intercepting the goods which
are being sent to the enemy, necessity, as we have elsewhere said,
will give me a right to intercept such goods, but with the obligation
to make restitution, unless another cause arises.
If, now, the enforcement of my right shall be hindered by the
supplying of these things, and if he who supplied them has been in
a position to know this (for example, in case I should be holding
a town under siege or keeping ports under blockade, and a surrender
or the conclusion of peace should already be in anticipation), then he
will be liable to me for injury culpably inflicted, just as one who
releases a debtor from prison or secures his escape, to my detriment.
As in the case of the infliction of an injury, his goods may be seized,
and ownership over them may be sought, for the purpose of recovering
damages.
Designatedby the Athenians anopprjra ; that is, ' thingsof which theexport is forbidden',rope,
water-skins, timber, wax, and pitch. See the Scholiast on Aristophanes' Clouds [rather Frogs, line 365],
and Knighls [line 282].
1 See Paruta, Book VII.
Chap. 1] Rules regarding what is Permissible in War 603
If he wlio furnishes supplies has not yet caused me injury, but
has wished to do so, I shall have the right, through the retention of Syivester,
his goods, to oblige him to give security for the future, by means of ^tftutio
hostages, by pledges, or in some other way. pt. m,
If, moreover, the injustice of my enemy toward me is palpably § I2,
evident and the one who furnishes supplies to him strengthens him
in a very wicked war, in that case the latter will be responsible for
the injury, not only by civil law but also by criminal law, just as
one would be who should deliver an obviously guilty party from
a judge who is about to inflict punishment. On this ground it will
be permissible to pass upon the furnisher of supplies a sentence which
suits his crime, in accordance with what we have said regarding
punishments ; within the limits there indicated he may even be
despoiled.
4. For the reasons which have been stated, those who engage
in war usually address public proclamations x to other peoples, with
1 See the examples in the joint war against the Egyptians, Saracens, and others ; Decretals, I. xxxvi.
n ; V. vi. 11 ; Extravagantes, viii. un. ; Extravagantes Communes, V. ii. i.
There has been published in Italian a book called Consolato del Mare, in which have been collected
the edicts of the emperors of Greece and Germany, and of the kings of France, Spain, Syria, and Cyprus ;
also those of the Balearic Isles, the Venetians, and the Genoese. In title cclxxiv of that book questions
of the kind under consideration are discussed, and the following principles are stated :
If both the ship and the cargo belong to the enemy, the case is clear that they become the property
of those who take them ; if, however, the ship belongs to those who are at peace, but the cargo to the
enemy, the belligerents may force the ship to convey the cargo to some poit belonging to them, upon
condition, however, of paying the cost of the voyage to the owner of the vessel. On the other hand,
if the ship belongs to the enemy, but the cargo to others, the latter must bargain for the price of the
vessel ; or, if the shippers do not wish to bargain, they must be compelled to go with the ship to some
port belonging to the side of the captor, and to pay to the captor the price due for the use of the vessel.
In Holland, in the year 1438, when the Dutch were at war with Liibeck and other cities on the
Baltic and the Elbe, in a full meeting of the Senate it was decided that merchandise clearly belonging
to others, even if it were found in vessels of enemies, did not form part of the booty ; and since then
this has been recognized as the law there. This was also the view of the king of Denmark, when, in
1597, he sent an embassy to the Dutch and their allies to claim for his subjects freedom of navigation
and of carrying merchandise to Spain, with which the Dutch were waging a very bitter war.
In France there has always been granted to those at peace freedom to carry on commerce, even
with those who were enemies of the French. So indiscriminately has such freedom been taken advantage
of that the enemy have often concealed their property under the names of others, as appears from
an edict of the year 1543, chap. xlii, which has been carried over into an edict of the year 1584, and
subsequent edicts. In these edicts it is expressly provided that it is permissible for those on friendly
terms with the French to carry on commerce in time of war, provided that this is done in their own
ships, and by their own people, ships, and cargoes ; it is permissible to carry their goods wherever
they may wish, provided that these goods shall not be material serviceable in war, by means of which
they wished to help the cause of the enemy ; in case material serviceable f or war should be transported,
the French are permitted to take such material for themselves, paying a fair price for it. Here we
must note two things ; by these [438] laws material of war did not become legitimate spoil, and
innocent merchandise was much farther removed from the same danger.
I should not deny that the northern nations have at times made use of another right, but in
different ways, and having in view rather a temporary advantage than the maintenance of permanent
justice. For when, making a pretext of their own wars, the English interfered with the commerce of
the Danes, for this cause war arose between the peoples with the result that the Danes imposed tribute
upon the English. Although the cause of the payment was changed, the name of it, Danegeld, remained
until the time of William [the Conqueror], who founded the dynasty now ruling in England ; this is
recorded by the very reliable De Thou, in his history of the year 1589 [XCVI. xv].
Again, Elizabeth, the wisest queen of England, in the year 1575, sent Sir William Winter and Robert
Beal, Secretary of the Royal Council, to Holland in order to make it plain that the English could not
suffer the Dutch, in the very midst of Holland's war with Spain, to detain English ships which had
604 On the Law of War and Peace [Booklll
the object of making clear both the justice of their cause and the
probable hope of enforcing their right.
5. In this inquiry we have referred back to the law of nature
for the reason [427] that in historical narratives we have been
sailed for Spanish ports. This is reported by Van Reyd for the year 1575 in his Dutch History, and
by the Englishman Camden for the following year. However, when the English had themselves
become enemies of the Spaniards and were interfering with the exercise of the right of navigation to
Spain on the part of German cities, from the controversial writings of both peoples, which deserve to
be read for an understanding of this controversy, it appears that the English had availed themselves
of such interference without any clear right. It is to be noted that the English themselves in their
writings admit this, when they adduce as the two chief points in support of their case that the things
which were being carried by the Germans to Spain were material for war, and that previous treaties had
forbidden such transportation.
Such treaties were afterward made by the Dutch and their allies with Liibeck and its allies in
1613, providing that neither the one party nor the other should permit subjects of the enemy to trade
within their territory, or aid the enemy with money, soldiers, ships, or provisions. Later, in 1627, it
was agreed between the kings of Sweden and Denmark that the king of Denmark should prevent all
commerce with the people of Danzig, who were enemies of Sweden, and should not permit any mer-
chandise to pass through the Cimbrian Strait [Baltic Sound] to the other enemies of Sweden ; for these
services the king of Denmark stipulated certain advantages for himself.
These, however, are special agreements, from which no inference can be drawn which would be
binding upon all. This was in fact said also by the Germans in their writings, that not all merchandise
was excluded by the treaties in question but only such merchandise as had been imported into England
or manufactured there. The Germans, nevertheless, were not the only ones who opposed the English
when the latter forbade commerce with their enemy. Even Poland sent an embassy and complained
that the law of nations was being infringed upon when, because of the war between England and
Spain, the Poles were deprived of the freedom of commercial relations with the Spaniards ; this is
related under the year 1597 by Camden and Van Reyd, whom we have cited already.
Moreover, after the Treaty of Vervins had been made with Spain, while Elizabeth, queen of England,
Temained at war, the French refused to accede to the request of the English that the English should
be allowed to search French ships that were sailing to Spain, in order that munitions of war might
not be secretly conveyed therein ; the reason alleged was that this was seeking a pretext for plundering
and disturbing commerce. In the treaty which the English made with the Dutch and their allies in
1625, an agreement was reached that other nations, to whose interest it was that the greatness of
Spain should be diminished, should be invited voluntarily to forbid commerce with the Spaniards ;
if, nevertheless, the nations should not do this of their own accord, it was decided that yessels should
be searched to see [439] if they carried any war material, but that otherwise neither the ships nor their
cargoes should be detained, and that damage should not be done on this pretext to those who remained
at peace.
In the same year it happened that certain men sailed from Hamburg for Spain in a ship laden
chiefly with military stores ; these stores were seized by the English, but the value of the rest of the
merchandise was paid. The French, however, when French ships sailing for Spain were confiscated
by the English, made it plain that they would not permit such procedure.
We have, therefore, well stated the case in saying that public proclamations are required. The
English themselves came to hold the same opinion. An example of such a proclamation made by
them is given by Camden under the years 1591 and 1598. However, such proclamations have not
always been obeyed, and distinctions have been made between times, causes, and places. In 1458,
in fact, the city of Lubeck decided that it would not obey the proclamation made by the city of Danzig,
forbidding them to carry on trade with Malmo and Memel, then at war with Danzig. Similarly the
Dutch in 1551 refused to obey when Liibeck notified them that they should refrain from commerce
with the Danes, who were then their enemies.
In 1522, when there was war between the Swedes and the Danes, the king of Denmark requested
the Hanseatic cities not to carry on commerce with the Swedes. Some of the cities, being in need of
his friendship, complied, but the others did not. When war was raging between Sweden and the king
of Poland, the Dutch never suffered themselves to be prohibited from commerce with one or the other
nation. The Dutch, moreover, always restored to France the French ships which on their way to or
from Spain were intercepted by Dutch vessels, Holland and Spain being at war. See the speech of
Louis Servin, one time royal advocate, delivered in 1592 in the case of citizens of Hamburg.
But the same Dutch did not permit merchandise to be brought by the English into Dunkirk, off
which they kept a fleet : just so the city of Danzig, in 1455, notified the Dutch not to carry anything into
the city of Koenigsberg, as Gaspar Schutz narrates in his Prussian History. Add Cabedo, Decisiones,
xlvii. 2, and Seraphinus de Freitas in his book On the Just Asialic Empire of the Portuguese, where he
cites various others.
Chap. 1] Rules regarding what is Permissible in War
605
unable to find anything established by the volitional law of nations x
to cover such cases. The Carthaginians sometimes captured Romans
who had brought supplies to their enemies ; and they surrendered
such persons to the Romans who demanded them. When Demetrius
was occupying Attica with an army, and had already taken the
near-by towns of Eleusis and Rhamnus and was intending to starve
Athens into surrender, he hanged both the master and the pilot 2
of a ship that attempted to carry in grain ; having in this way deterred
others he made himself master of the city.
Plutarch,
Demetrius
[xxxiii =
p. 904 E].
VI. — Whether it is permissible to use a ruse in war
1. So far as the manner of conducting operations is concerned,
violence and frightfulness are particularly suited to wars. The
question is often raised, however, whether one may resort to ruses
also. Homer, at any rate, said that one must harm his foe —
By ruse or violence, by open ways or hidden.
In Pindar we find :
And every means must be employed
To bring the foeman low.
In Virgil there is also this :
Whether craft or valour, who would ask in war ?
Soon there follows,
Ripheus, who among the Trojans was the one most just,
And most observant of the right.
We read that Solon, who had a famous reputation for wisdom,
sought to follow this type. Silius [Italicus], narrating the exploits of
Fabius Maximus, says :
Deceit henceforth on valour's side is placed.
2. In Homer Ulysses, the typical man of wisdom, is at all times
full of wiles against the enemy ; whence Lucian deduced the rule
that those who deceive the foe deserve praise. Xenophon asserted
that in war nothing is more useful than deceptions. In Thucydides
Brasidas says that the renown won by the stratagems of war 3 is
1 The learned Jan de Mers has much on this topic in his History of Denmark, I and II. There you
will see that Liibeck and the Emperor are for commercial intercourse, and the Danes against it. See
also Krantz, Vandalica, XIV [XIV. xxix] ; De Thou, on the aforementioned year 1589, Histories, XCVI
[XCVI. xv] ; and Camden, besides the places previously cited, on the years 1589 and 1595, where the
dispute between the English and the Germans, who are called Hanseatics, is discussed.
2 Not very different is the incident related of Pompey by Plutarch in his History ofthe Mithridatic
War [Life of Pompey, xxxix = p. 639 e] : ' He placed guards at the Bosphorus to watch for any traders
who might sail in ; for those who were caught the penalty was death.'
3 So says Virgil also, Aeneid, XI [XI. 515], and Sallust, who is cited by Servius.
[Cf. Ho-
mer,
Odyssey,
I. 296 ;
Stobaeus,
liv. 46.]
[Isthmaean
Hymns,
iii. 69.]
[A eneid,
II. 390.]
Lucian,
Philo-
pseudes
[begin-
ning]..
Xen.,
Training
of Cyrus,
I[vi.29f.];
and On
Horseman-
ship [The
Cavalry
Com-
mander,
V.9].
6o6
On the Law of War and Peace
[Book III
Thuc,
V[ix].
Plutarch,
Apolh.
[=P-
209 b].
Polybius,
IX [xii].
V [100].
Plutarch,
Marcellus
[xxii=p.
311 B].
[Lysander,
vii=p.
437 a.]
[Philo-
xiii=p.
363 e-]
[xvn.
v. 6.]
Dig. IV.
iii. 1. §3-
XLIX.xv.
26.
On Joshua,
qu. x [On
Hepta-
Uuch, VI.
x].
Onthe
Priest-
hood,
I [viii].
particularly conspicuous ; and in Plutarch Agesilaus declares that
to deceive an enemy is both just and permissible.
Polybius thinks that what is accomplished by main force in
war is to be considered of less importance than what is done by
taking advantage of opportunities and by the use of deception.
Hence Silius represents Corvinus as saying :
War must be waged with guile ; x force brings less fame to the leader.
Similar, according to Plutarch, was the view even of the stern Spartans:
he observes that a larger victim was sacrificed by the one who had
gained a victory through a ruse than by him who had won by open
fighting. The same writer thinks highly of Lysander 2 for ' varying
with ruses most of the operations of war '. Plutarch counts it among
the merits of Philopoemen that, having been trained in the Cretan
system, he combined the straightforward and honourable method of
fighting with craft and ruses. It is a saying of Ammianus that
6 All successful issues of war are to be praised without distinction of
valour or guile \
3. The Roman jurists call it a good ruse ' whenever any one lays
a plot against the enemy ' ; and again, they say that it makes no differ-
ence whether any one escapes from the power of the enemy by force
or by trickery. This is ' deception which cannot be censured, such
as that of a general ', as Eustathius notes in his commentary on the
fifteenth book of the Iliad. Among the theologians, Augustine
declares : ' When one undertakes a righteous war, it makes no
difference, [428 ] in respect to justness, whether he fights openly
or by ambuscades.' Chrysostom says that generals who have won
a victory by a ruse receive the highest praise.
4. However, there is no lack of opinions which seem to advocate
the opposite view, and some of these we shall present below. The
final conclusion will depend upon the answer to the question whether
deceit belongs to the class of things that are always evil, in regard to
which the saying is true that one must not do evil that good may
come ; or whether it is in the category of things which from their very
nature are not at all times vicious but which may even happen to be
good.
There is a similar saying of Mohammed, * el-harbu hud'atun', [440] that is, ' battles require
deceit'. According to Virgil [Aeneid, XII. 336], in the following of Mars are :
Wrath and ambuscades.
Thereon Servius comments : ' He shows that he is accompanied not only by valour, but also by
stratagems.'
* 1'lutarch compares him to Sulla, in whose soul Carbo used to say there were a lion and a fox
[Sulla, xxviii = p. 469 E].
Chap. 1] Rules regarding what is Permissible in War
607
VII. — In a negative action, deceit is not in itself unpermissible
It must be observed, then, that deceit is of one sort in a negative
action, of another sort in a positive action. The word deceit I extend,
on the authority of Labeo, even to those things which occur in a
negative action ; he classes it as deceit, but not harmful deceit, when
any one ' protects his own or another's possessions through dissimula-
tion \ It cannot be doubted that Cicero spoke too sweepingly when he
said : ' Pretence and dissimulation must be removed from every
phase of life.' For since you are not required to reveal to others all
that you know or desire, it follows that it is right to dissimulate,
that is to conceal and hide some things from some persons. ' One
may ', said Augustine,1 ' conceal the truth wisely, by the use of
dissimulation in some degree '. Cicero himself in more than one
place admits that such dissimulation is absolutely necessary and
unavoidable,2 especially for those to whom the care of the state is
entrusted.
The narrative of Jeremiah (Jeremiah, chap. xxxviii) ofTers
a notable example touching this point. The prophet had been
questioned by the king as to the outcome of the siege, but in the
presence of the princes, at the king's request, he wisely concealed
that fact, assigning another and yet not untrue reason for the confer-
ence. With this, again, we may class the action of Abraham 3 in
concealing his marriage and calling Sarah his sister, that is, according
to the usage of the time, a near relative.
VIII. — Deceit in a positive action falls under two heads : deceit
exhibited in actions not limited in significance, and that exhibited
in actions the significance of which is, as it were, Jixed by agree-
ment ; it is shown that deceit of the former sort is permissible
1. Deceit which consists in a positive action, if it is exhibited
in acts, is called pretence ; if in words, falsehood. Some persons
establish this distinction between the two terms, because they say
that words are naturally the signs of thoughts, while acts are not.
But the contrary is true, that words by their very nature and apart
from the human will have no significance, unless perchance a word
is confused and ' inarticulate ', such as is uttered by a person in grief,
when it comes rather under the term act than speech.
If now the assertion is made that the nature of man possesses
Against
Lying, x ;
Thomas,
II. ii, qu.
40, art. 3,
ans. to
obj., and
qu. 71,
art. 7 ;
Sylvester,
word
bellum, pt.
I, no. 9.
Cicero,
For Milo
[xxiv. 65];
Letters,
VII. ix
[X. viii.
4]; For
Gn. Plan-
cius [vi.
16].
Genesis,
xx ;
Thomas,
II. ii, qu.
110, art. 3,
ans. to
obj.
1 Also on Psalm v, verse ' Thou wilt destroy all ' : ' It is one thing to lie, and another to conceal
the truth.' This is cited in the Decretum, II. xxiii. 2 [II. xxii. 2. 14].
2 See Chrysostom, On the Priesthood, I [I. viii. end].
3 ' He wished the truth to be concealed, but not to utter a lie ' : Augustine, On Genesis, qu. xx
[On Heptateuch, I. xxvi], quoted by Gratian, in the aforementioned Decretum, II. xxii. 3 [II. xxii. 2. 22].
1569.27 T t
608 On the Law of War and Peace [Booklll
superioritv over that of other living creatures in this, that it can convey
to others the ideas of the mind and that words were invented for this
purpose, that is true. But it must be added that such conveying of
thought is accomplished not by means of words alone but also by
signs,1 as among dumb persons, whether these signs naturally have
something in common with the thing signified or whether they
po> lificance merely by agreement.
ilar to these signs are those characters which, as Paul the
juri J do not express words formed by the tongue but ob-
jects themselves, either from some resemblance, as in the case of
hieroglvphic signs, or by mere arbitrary convention, as among the
Chinese.
2. At this point then we must introduce another distinction,
such as we employed to remove the ambiguity in the term law of
nations. For we said that the term law of nations includes both what
is approved by separate nations without mutual obligation and what
contains a mutual obligation in itself. Words, then, and signs, and
the written characters we have mentioned, were invented as a means
on inur> of expression under a mutual obligation ; as Aristotle called it,
1 by convention \ This is not the case with other things. Hence
it comes about that we may avail ourselves of other things, even if we
foresee that another person will derive therefrom a false impression.3
[429] I am speaking of what is intrinsic, not of what is incidental.
And so we must give an example, in which no harm follows as a
consequence,4 or in which the harm itself, without consideration of
the deceit, is permissible.
Luiu, 3. An example of the former case is found in Christ, who in
xxiv. 28. the presence of His companions on the way to Emmaus ' made as
though He would ' go further, that is, gave the impression of intending
to go further ; unless we prefer truly to believe that He wished to
go further, on condition, nevertheless, that He should not be detained
by a great effort. Thus God is said to will many things which do
Mmk, vi. not come to pass, and in another place Christ is said to have intended
to pass by the Apostles who were in a ship, that is had He not been
urgently entreated to embark.
Another example may be found in Paul's circumcision of
Timothy, when he was weli aware that the Jews would interpret this
as though the injunction of circumcision, which had in fact already
1 Pliny, on the nation of the Ethiopians, [Nalural History,} VI. xxx, says : * Some of them use
iings of the head and movements of the limbs instead of speech.' See Decretals, IV. i. 25.
', he says, 4 bound by the form of the letters, but by the speech vvhich the letters
exnress, in so far as it is agreed that what is indicated by the writing has not less force than what is
indicated by words formed bv the tongue.' In a truly philosophic spirit has he said ' it is agreed',
in OTder to show that these things have force * by convention' (U awdriK^).
• See Augustine, On Christian Doctrim, II. xxiv [II. xxxiv].
4 As in the deed of Michal, 1 Samuel, xix. 16.
3
Chap. 1] Rules regarding what is Permissible in War
609
been done away with, was still binding upon the children of Israel,
and as though Paul and Timothy themselves thought so. However,
Paul did not have this in view, but merely sought to obtain for himself
and Timothy the opportunity of associating with the Jews on more
intimate terms. After the removal of the divine law circumcision
no longer implied such an obligation by agreement ; and the evil
arising f rom the error, which followed f or the time being, and was later
to be corrected, was not of so great importance as the good which
Paul sought, that is the introduction of the truth of the Gospel.
This sort of pretence the Greek fathers often call c manage-
ment \x In regard to it there is a notable opinion of Clement of
Alexandria, who in a discussion of the good man speaks thus : ' For the
benefit of his neighbour he will do things which otherwise he would
not do of his own accord and original purpose.' Of this nature was the
act of the Romans who threw bread from the Capitol into the posts of
the enemy that they might not be believed to be distressed by famine.
4. An example illustrating the latter case is found in a pre-
tended flight, such as Joshua ordered his men to make so as to take
Ai by storm, and such as other commanders have frequently ordered.
For in this instance we regard the injury which follows as legitimate
according to the justice of war. Moreover, flight itself has no signifi-
cance by agreement, although an enemy may interpret it as a sign of
fear ; such interpretation the other party is not obliged to guard
against in his use of his freedom to go hither and thither, more or
less rapidly, and with this or that gesture or outward appearance.
In the same category we may class the actions of those of whom we
read that they made use of the weapons, standards, uniforms, and
tents of their enemies.
5. All these things are in fact of such a sort that they may be
employed by any one at his discretion, even contrary to custom ; for
the custom itself was introduced by the choice of individuals, not as
it were by universal consent, and such a custom constrains no one.
[Stromata,
VII. ix.]
Livy, V
[xlviii. 4].
Joshua,
viii ;
Sylvester,
word bel-
lum, pt. i,
no. 9.
IX. — The difficulty of the inquiry in resfiect to the second sort of deceit
is indicated
1. Of greater difficulty is the discussion with respect to those
types of deceit which, if I may so say, are in common use among men
in commerce and in which falsehood in the true sense is found.
1 For so this is to be called, and not d-rrnTT], that is, ' deceit', according to Chrysostom in the
work previously cited, On the Prieslhood, I [I. ix].
The same author comments as follows On First Corinthians, iv. 6 [Homily XII, 1] : ' Here there
was no deceit, but a sort of obedience and management.' Also, in his comment on ix. 20 [Homily
XXII, iii] : ' For that he might correct those who were in truth such, he himself became such, not in
truth being other than what he was, but pretending to be, doing such things as they did, but not with
the same purpose.' With this we may associate the pretended madness of David.
T t 2
6io
On the Law of War and Peace
[Book III
Creusa, in
Stobaeus,
>Menan-
der, in
Stobaeus,
xii. i6a.]
[Xicom.
Ethics,
IV. xiii.]
[On Lying,
i. i and
xviii. 38.]
Plato, Re-
public, 1,
II and V.
Socratcs,
morab.,lV.
irch,
Contrad.
of Stoics
: = p.
1055.
tilian,
XII i [38].
VII. iii;
■
II %
IV. x
Ethics,
There are many injunctions against falsehood in Holy Writ.
' A righteous man ', that is the good man, ' hateth lying ' (Proverbs,
xiii. 5) ; ' Remove far from me falsehood and lies ' (Proverbs, xxx. 8) ;
' Thou wilt destroy them that speak lies ' (Psalms, v. 6) ; ' Lie not
one to another ' (Colossians, iii. 9).
This point of view is rigidly maintained by Augustine ; and even
among the philosophers and poets there are those who are seen to
be in sympathy with it. Well known is this saying of Homer :
To me as hateful as the jaws of Hell is he
Whose mind thinks other than his tongue reveals.
[430] Sophocles says :
What is foreign to truth it is never fitting to utter.
Yet, if the telling of truth will bring sure doom to another,
Pardon to him must be granted who does that which is not fitting.
Cleobulus has this line :
Falsehood is hateful to him who in his heart is wise.
totle said : ' Falsehood in itself is base and worthy of censure,
but truth is noble and deserving of praise.'
2. Nevertheless authority is not lacking in support of the
opposite view also. In the first place in Holy Writ there are examples
of men cited without a mark of censure ; * and, in the second place,
there are the declarations of the early Christians, Origen, Clement,
Tertullian, Lactantius, Chrysostom, Jerome, and Cassian, indeed of
nearly all, as Augustine himself acknowledges. Although disagreeing
with them, he nevertheless recognizes that it is ' a great problem ',
' a discussion full of dark places ', ' a dispute in which the learned are at
variance ', to use words that are all his own.
3. Among the philosophers there stand openly on this side
Socrates and his pupils Plato and Xenophon ; at times, Cicero ;
if we may trust Plutarch and Quintilian, also the Stoics, who among
the endowments of the wise man include ability to lie in the proper
place and manner. In some places Aristotle too seems to agree with
them, for his phrase ' in itself ', which we have quoted, may be inter-
preted generally, that is, considering the thing without regard to
attendant circumstances. The commentator upon Aristotle,
Andronicus of Rhodes, thus speaks of the physician who lies to
a sick man : ' He deceives indeed, but he is not a deceiver,' adding
the reason : ' for his aim is not the deception of the sick man, but his
cur<
1 Irenaeus learned from the tnstniCtion "f U ancient presbyter, and taught that : ' We should
not become accusers in thin^s which the Scriptures simply state, but do not censure.' The passage
is in Book IV, chap. 1 [IV. xxxi].
Chap. 1] Rules regarding what is Permissible in War 611
4. Quintilian, whom I have mentioned, in defending this
same view says that there are many things which are made honourable
or base, not so much by the nature of the facts as by their causes.
Says Diphilus :
The falsehood told for safety's sake,
If I may judge, can cause no detriment.
In Sophocles, wThen Neoptolemus asks :
Do you not think a lie is base ?
Ulysses answers :
If safety from the lie arise, I do not.
Similar views may be cited from Pisander and Euripides. In
Quintilian, again, I read : ' For to tell a lie is sometimes permissible
even for the wise man.' Eustathius, Metropolitan of Thessalonica,
commenting On the Odyssey, II, writes : ' The wise man will lie
when occasion demands ' ; x and on this point he adduces evidence
from Herodotus and Isocrates.
[Philo>
ctetes,
108 f.]
X. — Not every use of an expression, which is knozvn to he taken in another
sense, is unpermissible
1. Perhaps we may fmd some way of reconciling such divergent
views in a wider or more strict interpretation of the meaning of
falsehood.
Adopting the point of view of Gellius when he distinguishes
between telling an untruth and lying, we do nct understand as
a falsehood what an ignorant person happens to say ; 2 but we are
concerned with that which is consciously uttered with a meaning
that is at variance with the idea in the mind, whether in under-
standing cr in an act of will. For ideas of the mind are what are
primarily ' and immediately ' indicated by words and similar signs ;
so he does not lie who says something untrue which he believes to be
true, but he lies who says that which is indeed true but which he
believes to be false. [431] Falsity of meaning, therefore, is that
which we need to exemplify the general nature of falsehood.
From this it follows that, when any term or phrase has ' several
meanings ', that is, may be understood in more than one way, either
1 On occasion, as Donatus says, On [Terence's] Brothers, IV. iii. [IV. iii. 18] : 'And some writers
on moral obligations think that it is right for one to deceive on occasion.' Cicero, For Quintus Ligarius
[v. 16], calls such a falsehood ' an honourable and merciful lie'.
2 ■ Nothing except a guilty mind makes a guilty tongue', and ' No one is to be considered a liar
who has said something false which he thinks to be true, because, so far as it is in his power, he himself
does not deceive, but is deceived'. These are the words of Augustine, in his On the Words of the
Apostle, XXVIII [ = Sermones de Scripluris, clxxx. 2], and Enchiridium, xxii [xviii], cited by Gratian,
in the Decreium, II. xxii. 1 [II. xxii. 2. 3 and 4].
6l2
On the Law of War and Peace
[Book III
John,
xi. ii.
John, ii.
20-1.
Luke,
xxii. 30.
Matthew,
xx vi. 25
[xxvi. 29].
Acts, i. 6.
[Matthew,
xiii. 13.]
Tacitus,
Annak,
VI [XI.
xxxivl.
from common usage, or the practice of an art, or some figure of
speech easily understood, then, if the idea in mind fits one of these
meanings, it is not held to be a lie, even if it is thought that he who
hears it will understand it in another way.1
2. It is indeed true that the rash employment of such a mode
of speech is not to be approved. It may nevertheless be justified
by incidental causes, as, for instance, if thereby aid is rendered in the
instruction of one who has been entrusted to our care, or in avoiding
an unfair question.
Christ Himself gave an example of the former sort, when He
said : ' Lazarus our friend is fallen asleep ', which the Apostles
understood as though it were said of the sleep of the living. Again,
what He had said about rebuilding the Temple, meaning it in regard
to His own body, He knew the Jews took with reference to the actual
Temple. Similarly when He promised to the Apostles twelve
exalted seats next to the King, like judges of the tribes among the
Jews, and elsewhere that they should drink of a new wine in His
Father's kingdom, He seems to have been fully aware that they
took this to refer to none other than some kingdom in this life, with
the expectation of which they were filled until the very moment
when Christ was about to ascend up into heaven. On another occa-
sion also He spoke to the people through the indirectness of parables,
that those who heard Him might not understand, unless, that is,
they should bring thereto such earnestness of mind and readiness to
be taught as were required.
An example of the latter use may be given from profane history
in the case of Lucius Vitellius, whom Narcissus pressed to explain
his ambiguities and reveal the truth fully, but whom he could not
force to refrain from giving replies that were dubious and capable
of varied interpretation.2 Here applies a saying of the Jews : 3
1 If any one knows how to use ambiguous language, it is well : but if
not, let him remain silent.'
3. On the other hand, a case may arise when it is not only not
praiseworthy but even wicked to employ such a mode of speech ; as
1 Just as [441] Abraham spoke deceptively to his servants; 011 this incident Ambrose [On
Abraham, I. viii. 71] passes judgement with approval. He is followed by Gratian, after the afore-
mentioned Decretum, II. xxii. 2. 20.
* The same Tacitus, Histories, III [III. iii], says : ' He spoke obscurely, with the intention of
interpreting his words in such a way as might be advantageous.' Also [III. lii] : ' Having so phrased
his statements that, according to the outcome, he might repudiate connexion with what was unfavour-
able, or assume cTedit for what was successful.'
• To the Jews belongs the following also : ' It is permissible to speak ambiguously for
the sake of a good thing.' This is cited by the erudite Manasses Ben-Israel in his Conciliator,
qu. xxxvii.
rvsostom, On the Prieslhood, I [I. ix. end], says : ' He is rightly called a deceiver who avails
himself of such a means unjustly, but not he who does so for a beneficial purpose.'
Chap. 1] Rules regarding what is Permissible in War 613
when the glory of God,1 or the love due to our neighbour,2 or rever-
ence toward a superior, or the nature of the thing in question requires
that everything which is thought in the mind shall be completely
revealed. Just so in the case of contracts, we said that that must [ii. xii. 1
be made known which the nature of the contract is understood to
demand ; and in this sense we may not inaptly interpret the rule [On
of Cicero, c All falsehood must be removed from matters of contract ', nif*xv.
which is taken from the ancient Athenian law prohibiting ' the 6i.j
uttering of falsehoods in the market-place '. In these passages D^m°-
apparently the word falsehood receives so broad a meaning that it Agaimi
covers even an obscure statement. But this, strictly speaking, we f^*
have already excluded from the idea of a falsehood. 459.']
XI. — The character of falsehood, in so far as it is unfiermissible, consists
in its conflict with the right of another ; this is explained
1. In order to exemplify the general idea of falsehood, it is
necessary that what is spoken, or written, or indicated by signs
or gestures, cannot be understood otherwise than in a sense which
differs from the thought of him who uses the means of expression.
Upon this broader signification, however, a stricter meaning of
falsehood must be imposed, carrying some characteristic distinction.
This distinction, if we regard the matter aright, at least according
to the common view of nations, can be described, we think, as nothing
else than a conflict with the existing and continuing right of him to
whom the speech or sign is addressed ; for it is sufnciently clear that
no one lies to himself, however false his statement may be.
By right in this connexion I do not mean every right without
relation to the matter in question, but that which is peculiar [432]
to it and connected with it. Now that right is nothing else than the
liberty of judgement 3 which, as if by some tacit agreement, men
who speak are understood to owe to those with whom they converse.
For this is merely that mutual obligation which men had willed to
introduce at the time when they determined to make use of speech
1 Philo, Onthe Life of Moses [III. xxi] : ' I am speaking of things which concern the glory of God,
in regard to which even one who is otherwise of a lying disposition must speak the truth. For truth
is the companion of God.' Augustine, Letters, viii [xxviii. 3] : * It is one question, whether a good man
should ever lie ; and another question, whether a writer of the Holy Scriptures should lie.' See what
follows below in III. i. 15.
2 Aeschylus, Prometheus Bound [lines 609 ff .] :
Openly shall I say what you seek to hear,
In simple speech, and not in dubious phrase,
But as is right to hold discourse with friends.
3 Hence the Hebrews say that he who takes away the means of knowing ' steals the heart ' ;
Genesis, xxxi. 20, 26-7, with the commentary of Onkelos thereon, and the Septuagint. Also Rabbi David
in his Book ofRoots, Rabbi Salomon in his commentary, and Aben-Ezra.
614
0)i thc Law of War and Peace
[Book III
Republic,
331 d).
[Enchiri-
dium,
OnDuiUs,
I[x.3x].
and similar signs ; for without such an obligation the invention of
speech would have been void of result.
2. We require, moreover, that this right be valid and con-
tinuing at the time the statement is made ; for it may happen that
the right has indeed existed, but has been taken away, or will be
annulled by another right which supervenes, just as a debt is can-
celled by an acceptance or by the cessation of the condition. Then,
further, it is required that the right which is infringed belong to
him with whom we converse, and not to another, just as in the case
of contracts also injustice arises only from the infringement of a right
of the contracting parties.
Perhaps you would do well to recall here that Plato, following
Simonides, refers truth-speaking to justice ; that falsehood, at least
the type of falsehood which is forbidden, is often described in Holy
Writ as bearing false witness or speaking against one's neighbour ;
and that Augustine himself in determining the nature of falsehood
regards the will to deceive * as essential. Cicero, too, wishes that
inquiry in regard to speaking the truth be referred to the fundamental
principles of justice.
3. Moreover, the right of which we have spoken may be
abrogated by the express consent of him with whom we are dealing,
as when one says that he will speak falsely and the other permits it.
In like manner it may be cancelled by tacit consent, or consent
assumed on reasonable grounds, or by the opposition of another right
which, in the common judgement of all men, is much more cogent.
The right understanding of these points will supply to us many
inferences, which will be of no small help in reconciling the differences
in the views which have been cited above.
Locretius
[1.939].
[InstiiuUs
•/Ora.Sry.
380
XII. — The view is maintained that it is permissible to say what is false
before infants and insane persons
The first inference is that even ii something which has a false
significance is said to an infant or insane person no blame for false-
hood attaches thereto. For it seems to be permitted by the common
opinion of mankind that
The unsuspecting age of childhood may be mocked.
Quintilian, speaking of boys, said : ' For their profit we employ
many fictions.' The reason is by no means far to seek ; since infants
and insane persons do not have liberty of judgement, it is impossible
for wrong to be done them in respect to such liberty.
1 Lactantius, Institulcs, VI. xviii : ' Let him never lie in order to deceive or do harm.'
Chap. 1] Rnles regarding what is Permissible in War
615
XIII. — It is permissible to say zuhat is false when he to whom the
conversation is not addressed is deceived, and when it would be
permissible to deceive him if not sharing in it
1. The second inference is that, so long as the person to whom
the talk is addressed is not deceived, if a third party draws a false
impression therefrom there is no falsehood.
There is no falsehood in relation to him to whom the utterance
is directed because his liberty remains unimpaired. His case is like
that of persons to whom a fable is told when they are aware of its
character, or those to whom ngurative language is used in l irony ',
or in c hyperbole ', a figure which, as Seneca says, reaches the truth
by means of falsehood,1 while Quintilian calls it a lying exaggeration.
There is no falsehood, again, in respect to him who chances to hear
what is said ; the conversation is not being held with him, con-
sequently there is no obligation toward him. Indeed if he forms
for himself an opinion from what is said not to him, but to another,
he has something which he can credit to himself, not to another.
In nne, if, so far as he is concerned, we wish to form a correct judge-
ment, the conversation is not a conversation, but something that
may mean anything at all.
2. Cato the censor therefore committed no wrong in falsely
promising aid to his allies, nor did Flaccus, who said to others that
a city of the enemy had been stormed by Aemilius, although in both
cases the enemy was deceived. A similar ruse is told of Agesilaus by
Plutarch. Nothing in fact was said to the enemy ; the harm, moreover,
which [433] followed was something foreign to the statement, and
of itself not unpermissible to desire or to accomplish.
To this category Chrysostom and Jerome2 refer PauPs speech,
in which at Antioch he rebuked Peter for being too zealous a Jew.
They think that Peter was well aware that this was not done in
earnest ; at the same time the weakness of those present was humoured.
XIV. — It is permissible to say what is false when the conversation is
directed to him who wishes to be deceived in this way
1. The third inference is that, whenever it is certain that
he to whom the conversation is addressed will not be annoyed at
the infringement of his liberty in judging, or rather will be grateful
therefor, because of some advantage which will follow, in this case
On Bene-
fits, VII.
xxiii.
[Inst. Or.,
VIII. vi.
67.]
Livy,
XXXIV
[xii].
Appian,
Spanish
Wars
[xiii. 81].
[Agesilaus,
xvii =
p. 605 c.]
[Chrysost.
On Gal.t
ii. 7-8 ;
Jerome,
Letters,
cxvi. 10.]
[Galatians,
ii. 14.]
1 ' He makes unbelievable assertions, in order to arrive at what is believable.' Seneca, in the same
passage.
2 Also Cyril, Against Julian, IX, near the end. Not very differently also Tertullian, Against
Marcion, Books I and III [I. xx ; IV. iii].
6i6
On the Law of War and Peace
[Book III
94».]
[Stobaeus,
xii. 13.]
[Training
of Cyrus,
I. vi. 31.]
[Stromata,
VII. ix.
53.]
[Disserta-
tions, xix.
3.]
Socrates,
IV [Me-
morabilia,
IV.ii.17].
Livv,
XXXIV
[I. xxvii.
8].
[Livy, II
Ixiv. 6.]
also a falsehood in the strict sense, that is a harmful falsehood, is not
perpetrated ; just so a man does not commit theft who with the pre-
sumed consent of the owner uses up some trifling thing in order that
he may thereby secure for the owner a great advantage.
In these matters which are so certain, a presumed wish is taken
as one that is expressed. Besides, in such cases it is evident that no
wrong is done to one who desires it. It seems, therefore, that he
does not do wrong who comforts a sick friend by persuading him
of what is not true, as Arria did by saying what was not true to Paetus
after the death of their son ; the story is told in the Letters of Pliny.1
Similar is the case of the man who brings courage by a false report
to one who is wavering in battle, so that, encouraged thereby, he
wins victory and safety for himself, and is thus * beguiled but not
betrayed ', as Lucretius says.
2. Democritus says : c We must speak the truth, wherever that
is the better course.' Xenophon writes : ' It is right to deceive our
friends, if it is for their good.' Clement of Alexandria concedes c the
use of lying as a curative measure '. Maximus of Tyre says : c A
physician deceives a sick man, a general deceives his army, and a pilot
the sailors ; and in such deception there is no wrong.' The reason is
given by Proclus in commenting on Plato : ' For that which is good
is better than the truth.'
To this class of untruths belong the statement reported by
Xenophon,2 that the allies would presently arrive ; that of Tullus
Hostilius, that the army from Alba was making a flank movement by
his order ; what histories term the c salutary lie ' of the consul
Quinctius, that the enemy were in flight on the other wing ; and
similar incidents found in abundance in the writings of the historians.
However, it is to be observed that in this sort of falsehood the infringe-
ment upon the judgement is of less account because it is usually
confined to the moment, and the truth is revealed a little later.
XV. — It is permissible to say what is false when the speaker makes use
of a superior right over one subject to himself
1. A fourth inference, akin to the foregoing, applies to the
case when one who has a right that is superior to all the rights of
another3 makes use of this right either for his own or for the public
1 III. xvi.
* ' And when Agesilaus had come into Boeotia and had learned that Pisander had been beaten
in a naval battle by Pharnabazus and Conon he gave orders that the opposite should be told to his
troops ; and he came forth wearing a wreath, and he offered sacrifice as if in gratitude for a victory.'
Plutarch, Azesilaus [xvii =p. 605 c].
• In the Jliad, II [II. 73 f.], Agamemnon the leader of the Greeks says:
But first I shall prove the Greeks with words, as my right is,
And bid them swiftly to flee with their brazen ships
Chap. 1] Rules regarding what is Permissible in War 617
good. This especially Plato seems to have had in mind when he
conceded the right of saying what is false to those having authority.
Since the same author seems now to grant this privilege to physicians,1
and again to deny it to them, apparently we ought to make the
distinction that in the former passage he means physicians publicly
appointed to this responsibility, and in the latter those who privately
claim it for themselves. Yet Plato also rightly recognizes that false-
hood is not becoming to deity, although deity has a supreme right
over men, because it is a mark of weakness to take refuge in such
devices.
2. An instance of blameless mendacity, of which even Philo
approves, may perhaps be found in Joseph,2 who, when ruling in the
king's stead, accused his brothers first of being spies, and then of being
thieves, pretending, but not really believing, that they were such.
Another instance is that of Solomon, who gave an example of wisdom
inspired by God, when to the women who were disputing over the
child he uttered the words which indicated his purpose to slay it,
although his real intent was the furthest possible from such a course,
and his desire was to assign to the true mother her own ofTspring.
[434] There is a saying of Quintilian : ' Sometimes the common
good requires that even falsehoods should be upheld.'
[On Jo-
seph,
xxviii.]
XVI. — It is perhaps permissible to say what is false when we are unable
in any other way to save the life of an innocent person, or something
else of equal importance
A fifth inference may be applicable to cases where the life
of an innocent person, or something else of equal importance, cannot
be saved without falsehood, and another person can in no other way
be diverted from the accomplishment of a wicked crime.3 Such was
the deed of Hypermnestra, who is often lauded for this reason :
Nobly false * and for all time
A maiden famed.
1 [442] Chrysostom, in the aforementioned On the Priesthood, I [I. ix], adduces examples of
physicians.
2 ' When with pretended severity he accuses his brothers of espionage ', says Cassiodorus [Peter
of Blois] in his On Friendship.
* Augustine, On Psalm V [§ 7], cited by Gratian, in Decretum, II. xxii. 2. 14, says: 'There are,
however, two sorts of lies in which there is no great fault, yet which are not entirely free from fault.
The one sort is told when we are joking, the other when we lie for the benefit of our neighbour. Now
the first sort, which consists in a joke, is not so dangerous, because it does not deceive. For he to whom
it is told knows that it has been told in jest. But the second sort of lie is still less dangerous, because
it contains some element of kindness.'
Tertullian, On Modesly [chap. xix], classes among the sins of daily occurrence, to which we are all
subject, the necessity of lying.
4 On this the Scholiast comments : ' Fittingly. For it is noble to lie for the sake of justice.' Of
like tenor is what Chrysostom [On Penitence, VII. v] says of Rahab : ' 0 fair falsehood, 0 praise-
worthy deception, not of one who breaks divine commands, but of one who is a guardian of the truth',
or, as other manuscripts have it, ' guardian of true piety '.
6i8
On the Law of War and Peace
[Book III
Republic,
II [xxi =
382 c] •
Training
of Cyrus,
28], and
SocraUs,
morabilia,
'tgr.
ofAbr.
[On the
Cherubim,
sostom,
On the
Prusthood,
I Samuel,
xi [10] ;
I[2]
Kings, vi.
18 ff.
[Fron-
tinus,
Strata-
gems, II.
iv. 9].
Or.,
XII. i.
39].
Thomas,
II. ii, qu.
110, art.
1 and 3 ;
Covarru-
vias, On
Sext., I.
xviii. 2,
pt. 1,
§5»no. 15;
Soto, De
lustitia,
V, qu. 6,
Toledo,
IV. xx. ;
ii;
Lessius,
Dc lusti-
tia, Il.xlii,
dub. 9.
XVII. — The authors zvho have judged that falsehood spoken in the
presence of enemies is permissible
1. The pnnciple which the learned generally lay down, that it
is permissible to speak falsely to an enemy, goes beyond what we have
just said. Accordingly, to the rule forbidding a lie the exception,
unless against enemies, is added by Plato and Xenophon ; also by
Philo among the Jews, and by Chrysostom among. the Christians.1
To this exception you would perhaps refer the lie of the men of
Jabesh when under siege, as recorded in Holy Writ, and the similar
deception on the part of the prophet Elisha ; 2 also that of Valerius
Laevinus, who boasted that he had slain Pyrrhus.
2. To the third, fourth, and fifth of the conclusions which we
have stated, applies the passage of Eustratius, Metropolitan of
Nicaea, On Nicomachean Ethics, Book VI [VI. ix] :
He who gives good counsel does not necessarily speak the truth. It can in fact happen
that he who plans aright makes falsehood itself a part of his plan, that he may lie inten-
tionally, either to an enemy, in order to deceive him, or to a friend, to deliver the friend
from evil ; historical narratives are full of instances of this sort.
Quintilian says that, if a footpad must be deterred from killing
a man, or if an enemy must be deceived to save the country, we shall
find it necessary to praise in the wise man himself conduct that
otherwise we should have to censure in slaves.
3. These doctrines do not meet with the approval of the
school of writers of recent times, since in almost all matters they have
chosen to follow Augustine 3 alone of the teachers of antiquity. But
the same school admits of unspoken interpretations, which are so
repugnant to all practice that one may question whether it would
not be more satisfactory to admit to certain persons the use of false-
hoods in the cases we have mentioned, or in some of them (for I
assume that nothing has been settled here), than so indiscriminately
to exempt such interpretations from the definition of falsehood.
Thus when they say ' I do not know ', it may be understood as ' I do
In regard to the Egyptian midwives, Augustine [On Heptateuch, II, beginning] says : '0 great
instinct of humanity, 0 pious lie uttered to save life ! ' Jerome, On Ezekiel, xxvii [xxxviii] and On
Isaiah, Ivi [lxvl, praises these same midwives and believes that rewards, even eternal rewards, have
been given 10 them. AJso Ambrose, Letters, VI [V. 10], To Syagrtus, and Augustine himself, Against
Lying, To Consenlius, chap. xv, varying, as often.
Tostado denies that there is sin in this. Augustine, On Exodus, II [On Heplaieuch, II. i], and
Thomas Aquinas, II. ii, qu. 110, art. 55, ans. to obj. 4, and Cajetan thereon, are doubtful. See, if
you have the tirne, Erasmus, in his Praise of Folly, and the erudite Maes, On Joshua, ii. 5.
1 He speaks thus : 4 If you shouid call to account the most eminent ^cncrals, you would find tliat
most of th- have been won through deneption ; and yet such generali rcceive more prai^
than thosc 1 warfare.'
* A similar act of the same Elisha is recorded in 2 Kings, viii. 10, according to the reading of the
Mas' ;lowed by the Latin Vulgate version.
' Augustine's later view in this matter has been opposed by the Abbot Rupert.
Chap. 1] Rules regarding what is Permissible in War 619
not know so as to tell you ' ; and when they say ' I have not ' it may
be understood as ' so as to give you ' ; and other things of this sort
which the common sense of mankind repudiates, and which, if
admitted, will offer no obstacle to our saying that whoever affirms
anything denies it himself, and whoever denies affirms.
4. It is assuredly quite true that in general there is no word
which may not have a doubtful meaning ; x for all words, in addition
to the significance which is called that of the first notion, have
another of a second notion,2 and this significance varies in the different
arts ; 3 moreover, words have diff erent meanings also in metaphor and
other figures of speech.
Again, I do not approve of the view of those who apply the
term jokes to falsehoods which are uttered with a particularly serious
expression and tone, as if they shrank from the word rather than
the thing.
XVIII. — The use of falsehood is not to be extended to statements con-
taining a promise
We must, however, bear in mind that what we have said regarding
falsehood is to be applied to assertions, and such indeed as injure no one
but a public enemy, but not to promises.4 For by a promise, as we have
just begun to say, a new and particular right is conferred upon him
to whom the promise is made.
This holds true even among enemies, without any [435] ex-
ception arising from the hostility existing at the time. It holds
true not only in the case of promises actually expressed, but also
in the case of those that are implied, as we shall show in discussing
the demand for a parley when we come to the part that deals with
the observing of good faith in warfare.
XIX. — The use of falsehood is not to be extended to oaths
This also must be repeated from the portion of our foregoing
discussion which dealt with the subject of oaths, that whether the
oath is assertive or promissory it has the force to exclude all excep-
tions which might be sought in the person of him with whom we are
dealing. The reason is that an oath establishes a relation not only
1 This view is supported by Chrysippus in Gellius, [Atlic Nights,] XI. xii. It is championed also
by Seneca, On Benefits, II. xxxiv: ' There is a vast number of things without name which we do not
designate by characteristic terms, but by convenient borrowed names.'
2 Augustine, De Magistro [vii. 20] : ' We have learned of no symbol which, among the things that
it signifies, does not signify itself also.'
3 See what we have noted above, on III. i. 10.
4 Agesilaus, and with him Plutarch [Agesilaus. ix =p. 600 D], make this distinction : [443] ' To
violate sworn agreements is to despise the gods. Otherwise, to deceive the enemy with words is not
only just but glorious,, and brings glory and satisfaction together with gain.'
620
On the Law of War and Peace
[Book III
with a man, but also with God, to whom we are bound by the oath,
even if no right arises for the man.
In the same place we have furthermore stated that in an oath
we do not, as we do in other speech, admit that interpretations not
wholly without warrant may be put upon words, in order to absolve
us from falsehood ; but we do require that the truth be spoken
with the meaning which a man listening is supposed to understand
in perfect good faith. Obviously, then, we must abhor the impiety
of those who did not hesitate to assert that it is proper to deceive
men by oaths just as boys do by means of dice.
XX. — Nevertheless it is more noble, and more becoming to Christian
simplicity, to refrain from falsehood even toward an enemy ; this
view is illustrated by comparisons
1. We know, too, that certain types of fraud, which we have
said were naturally permitted, have been rejected by some peoples
and persons. But this does not happen because they view such means
of deception as unjust, but because of a remarkable loftiness of mind,
and, in some cases, because of confidence in their strength. There
is in Aelian a saying of Pythagoras, that in two things man comes
very close to God, in speaking the truth at all times and in doing
good to others ; and in Iamblichus veracity is called a guide to all
good things, divine and human. For Aristotle ' the magnanimous
man is a lover of free speech and of the truth '. For Plutarch ' to
lie is worthy of a slave \l
Arrian says of Ptolemy : ' And for him, who was a king, it was
more disgraceful to lie than for another.' In the same author,
Alexander declares : ' Tbe king must speak nothing but the truth
to his subjects.' Mamertinus says of Julian : ' In our emperor there
is a marvellous agreement between mind and tongue. He knows
that lying is not only a mark of a low and mean spirit, but also a
slavish vice ; and in truth, since want or fear makes men liars, the
emperor who lies is ignorant of the greatness of his fortune.' In
Plutarch, praise is given to Aristides' ' character rooted in firm morality
and tenacious of justice, not even resorting to falsehood in any kind
of sport '. Of Epaminondas Probus says that he was ' so devoted to
truth that he did not lie even in jest '.
2. This point of view assuredly is all the more to be insisted
on by Christians ; for not only is simplicity enjoined upon them
(Mattbew, x. 16), but vain speaking is forbidden (Matthew, xii. 36) ;
Philo, in the book That Every Virtuous Man is Free [xxi],says : ' Whence men are accustomed
to style illiberal, and of a servile mmd, those who are two-faced and deceptive.'
Chap. 1] Rules regarding what is Permissible in War 621
and He is set for their example in whose mouth no guile was found.
Lactantius says : ' And so the true and upright traveller will not
quote that saying of Lucilius :
I lie not to a man who is my friend and intimate.
But he will think that he should not lie even to an enemy and a
stranger ; nor will he ever consent that his tongue, the interpreter
of his mind, shall disagree with his meaning and thought.'
Of like opinion is Neoptolemus in the Philoctetus of Sophocles
1 excelling in simplicity and nobleness ', as Dio of Prusa rightly
observes, for to Ulysses, who urges him to practise deception, he thus
replies :
Child of Laertes, what plans with grief I hear
With far more loathing would I carry out ;
For to devise deceits I was not born, [436] nor he
Of by-gone days, my sire, as men relate ; x
But by main force, not wiles, the captive to bear off,
Prepared am I.
Euripides in the Rhesus says :
Upon the foe a noble soul cannot inflict
A guileful death.
3. Thus Alexander declared that he would not steal a victory.
Polybius relates that the Achaeans shrank from all deceit against the
enemy, because they considered that the only sure victory which,
if I may express his meaning in the words of Claudian,
Conquers foes whose minds have been subdued.
Such was the attitude of the Romans almost to the close of the second
Punic War. Aelian records that ' The Romans know that they are
brave, and that they have not overcome their foes by artifice . . . and
trickery '. Hence when Perseus, king of Macedon, was deceived by
hopes of peace, the elder senators declared that they did not recognize
the methods of the Romans, that the ancestors of these never boasted
that they had waged war more by craft than by courage ; that it
had been the Roman method to wage war not by the ruses of the
Carthaginians, nor by the subtlety of the Greeks, who would esteem it
[Orations,
lii =
P. 552.]
[Sopho-
cles,
Philocte-
tes, 86 £E.]
[5io fj
Alex.%
xxxi=
P. 683 D.]
IX
[XIII. iii."
[On the
Sixth Con-
sulship of
Honorius,
249-]
[Various
History,
XII.
xxxiii.]
[Livy,
XLII.
xlvii.
4-8.]
1 Achilles, of whom Horace says, Odes, IV. vi [lines 13 ff.] :
He did not hide in the horse which feigned to be
An oflering to Minerva, to deceive the Trojans
In untimely festivals, and the court of Priam
Gay with choral dances ;
But openly he fought, and harsh was he to the captives.
See also what follows, upon which the Scholiast remarks : * Achilles never fought by underhand
means, but always openly, in reliance upon his valour.' Note the phrase ' In reliance upon his valour ' ,
which fits excellently with what we have said in the text at the beginning of this paragraph.
622
On the Law of War and Peace
[Book III
II
Scholiast
on Apol-
lonius, II
[Onthe
Customs of
theCatholtc
Ckurch, II.
57-]
more glorious to outwit an enemy than to overcome him by force.
Then they added the following :
In some cases, for the moment, more is accomplished by deceit than by valour,
but onlv his mind is forever conquered from whom the confession has been extorted
that he has been conquered not by artifice, nor by chance, but after joining forces in
battle in a just and righteous war.
Later we read also in Tacitus : l The Roman people takes ven-
geance on its enemies, not by fraud, nor in secret, but openly with
arms in hand.' Such men were the Tibareans also, who even agreed
upon the place and time of battle. In Herodotus Mardonius makes
a similar assertion regarding the Greeks of his time.
XXI. — It is not permissible for us to force any one to do zvhat is right
for us but notfor him
To the conduct of operations this principle also applies, that it
is not permissible to force or to entice any one to anything which
may not be permissible for him to do.1 The following may serve
as examples. It is not permissible for a subject to slay his king, nor
to surrender towns without public consent, nor to despoil his fellow-
citizens. Therefore it is not permissible to influence a subject, >vho
remains such, to do these things. For he who gives to another cause
to sin always sins himself as well.
It is not enough to urge in reply that for him who forces such
a man to a crime an act of this kind, as the killing of an enemy, is
legitimate. The deed it is in fact permissible for him to compass,
but not in this way. Augustine well says : ' It makes no difference
whether you yourself commit the crime, or whether you wish another
to commit it for you.'
XXII. — Nevertheless we may make use of assistance voluntarily offered
The case is difTerent when for a thing which is permissible for
him a person avails himself of the help of one who does wrong
voluntarily and not at his instigation. That this is not wicked we
have proved elsewhere by the example of God Himself.2 ' We
receive a deserter by the law of war ', says Celsus ; that is, it is not
contrary to the law of war for us to receive him who abandons the
side of the enemy and chooses our own.3
1 This is also the teaching of Maimonides in Halakol Toubal, v. io.
* In II. xxvi. 5.
* Am: to be surrendered, unless this has been agreed upon in the terms of
peace, as in the pcace with Philip, the Aetolians, and Antiochus. See Polybius, Selections on Embassies,
ix, xxviii and xxxv [ -Htstortes, XVIII. xliv : XXI. xxx ; XXI. xivj. Menander Protector also
$upports this view [frag. 11, p. 22, edit. Dindorf].
CHAPTER II
HOW BY THE LAW OF NATIONS THE GOODS OF SUBJECTS MAY
BE HELD FOR THE DEBT OF THEIR RULERS ;
AND THEREIN, ON REPRISALS
I. — By natural lazv no one except an heir is bound by the act of another
i. Let us proceed to principles derived from the law of nations.
These principles relate in part to war in general, and in part to a
particular aspect of war. Let us begin with the general considerations.
By the strict law of nature no one is bound by another's act,
except one who inherits his property ; for the principle that property
should be transferred with its obligations dates from the establish-
ment of proprietary rights.1 The Emperor Zeno says that it is
contrary to natural justice for persons to be harassed for the debts
of strangers. Hence the titles in the Roman Law ; the wife is not
to be sued for her husband, nor the husband for his wife, the son for
his father, nor the father or mother for their son.
2. The debt of the corporation, moreover, is not a debt of the
individuals, [444] as Ulpian well declares, especially if the cor-
poration has property ; for the rest the members of a corporation
are bound not as individuals, but as a part of the corporate body.
Seneca says : 6 If any one lends money to my country, I shall not
say that I am his debtor, nor will I admit this is my loan ; yet I shall
give my share towards paying it off \2 He had previously said : ' As
one of the people I shall not pay as though for myself, but I shall
contribute as for my country ' ; also, ' Individuals will be indebted
not as if for their personal debt, but for a share of the public debt.'
Hence in the Roman Law it was speciflcally provided that no
member of a village should be held for the debts of other villagers ;
and elsewheYe it is ordered that no property of one person is to be sued
for the debts of others even if public debts. In a novel of Justinian,
c pledge-taking ',3 that is, the taking of sureties for others, is forbidden,
and the reason given is that it is not reasonable for one person to be
the debtor and another to be made to pay. Here also exactions of
this sort are called hateful. King Theodoric, in Cassiodorus, calls it
disgraceful to permit one person to give sureties for another.
1 See above, II. xxi. 19. Add Decretals, V. xvii. 5 ; Decretals, V. xix. 9.
2 See the Law of Sicily, Book I [title c].
3 Sext, V. viii. 1 : ' Sureties which current speech commonly calls reprisals (repressalias).' It
would be more correct to write, as certain books do, reprensalias, for this corresponds exactly to the
Saxon word ' withernam ', but usage has accepted the other.
1569-27 U u- 623
Dig. III.
iv. 7. § 1.
Variae,
IV [x].
624
On the Law of War and Peace
[Book III
Institutes,
Thomas
Aquinas,
II. ii, qu.
40, art. 1 ;
Molina,
disp. 120
and 121 ;
Valentia,
Dispuia-
tions, iii,
qu. 16,
no. 3;
Navarrus,
xxvii, no.
136.
[xxxii. 13].
Gdlius,
XVI. iv.
VIII
and clsc-
where.
II. — A 'evertheless it has been established by the law of nations that both
the possessions and the acts of subjects are liable for the debt of
a ruler
1. Although what has just been stated is true, nevertheless by
the volitional law of nations there could be introduced, and appears
to have been intrcduced, the principle that for what any civil society,
or its head, ought to furnish, whether for itself directly, or because
it has bound itself for the debt of another by not fulfilling the law,
for all this there are held and made liable all the corporeal or incor-
poreal possessions of those who are subject to such a society or its head.
This principle, furthermore, is the outgrowth of a certain
necessity, because otherwise a great licence to cause injury would
arise ; the reason is that in many cases the goods of rulers cannot
so easiJy be seized as those of private persons, who are more numerous.
This then finds place among those rights which, as Justinian says,
have been established by civilized nations in response to the demands
of usage and human needs.
2. This principle, however, is not so in conflict with nature
that it could not have been introduced by custom and tacit consent,
since sureties are bound without any cause, merely by their consent.
It was hoped that members of the same society would be able through
mutual relations to obtain justice from one another, and provide for
their indemnification, more easily than foreigners, to whom in
many places slight consideration is given. Hence the advantage
derived from this obligation was common to all peoples, so that
he who might now be burdened by it at another time might in
turn be relieved.
3. That this usage has been accepted, appears from the perfect
wars ! which peoples wage against peoples. The practice observed
in such wars is in fact revealed by the formulas of declaration, as :
' I declare and make war upon the peoples of the ancient Latins and
the men of the ancient Latins,' and in the question ' whether they
wished and ordered that war be declared upon King Philip and the
Macedonians who were under his rule '. It is evidenced also by the
decrce itself, as, ' The Roman People orders that war be waged upon
the people of the Hermunduri and upon men of the Hermunduri ',
which is cited from Cincius on military affairs ; and elsewhere, as,
' Let him be an enemy, and also those who are within his defences.'
s of Damascus distinguishes wars from seizures of this sort, in showing that
Herod.whohad no right to make war upon the Arabs, could 'take reprisals' (fivma Xavtfdvdi) to use
a»ap! rdancewitha The words are those of Josephus,
Antiqnttits of the J -;], where we find also this : [448] * After relatin^ that fivehundred
taJents were owc: :,at the written bond resarding these stipulated that when the day
»ed had passed I . ties from all the territory of the Arabs, he [Nicholas]
declared that th; .„t the just collection of a debt.'
Chap. II]
Goods of Subjects and Debt of Rulers
625
We see that the same right is invoked also where a state of perfect
war has not yet been reached, but where nevertheless there is need
of an enforcement of a right by violent means, that is, by means of
an imperfect war. Long ago Agesilaus said to Pharnabazus, who
was a subject of the king of Persia : ' Formerly, Pharnabazus, when
we were friends of the king, we treated his possessions as became
friends ; now that we have become enemies, we treat them as belong-
ing to a foe. Since, therefore, we see that even you desire to be classed
among the king's possessions, we do right to strike at him through you.'
[445] III. — An example in the seizure of persons
1 . One f orm of the enf orcement of right regarding wThich I am
speaking was what the Athenians called s seizure of men \ Of this
a law of Attica said : ' If any one die by a violent death, for his sake
it shall be right for his relatives and next of kin to proceed to apprehend
men, until either the penalty has been paid for the murder, or the
murderers are given up. Such seizure may extend to three persons,
and no more.' Here we see that for the debt of the state, which is
bound to punish its subjects who have injured others, there is put
under obligation a certain incorporeal right of its subjects, that is,
their liberty of remaining where they wish and of doing what they
wish ; in consequence such subjects are temporarily in servitude,
until the state does that which it is bound to do, that is, until it
punishes the one who is guilty.
Although the Egyptians, as we learn from Diodorus Siculus,
used to maintain that neither a person nor his liberty should be
bound for a debt, nevertheless there is nothing in this that is repugnant
to nature, and the practice not only of the Greeks, but of other nations
also, has prevailed to the contrary.
2. Aristocrates, the contemporary of Demosthenes, had pro-
posed a decree to permit the apprehension anywhere of any one who
should slay Charidemus, and to number among the public enemies
any who should resist such seizure. In this proposal Demosthenes
criticizes many points : first, that Aristocrates did not distinguish
between killing justly and killing unjustly, although sometimes it
may be just to kill ; secondly, that he did not require that a trial
be previously demanded ; and, further, that he wished those who
received the homicide to be held responsible and not those among
whom the killing was done. The words of Demosthenes are :
For the law ordains that if those, among whom the wrong is suffered, do not pay
the penalty nor surrender the culprits, these shall be apprehended to the number of
three. But he lets these indeed go unpunished, and makes no mention of them ; while
he proposes that those shall be outlawed who have received the murderer when he has
u u 2
Plutarch,
A gesilaus
[xii-p.
602 D E],
and Xeno-
phon,
Greek
History,
IV [Hel-
lenica, IV.
i. 34 ff-].
[Demo-
sthenes,
Against
Aristo-
crates,
xxiii. 82
p. 647.]
[Against
A risto-
crates,
xxiii. 84-5
=p. 648.]
626
On the Law of War and Peace
[Book III
II. xxi. 7
[5].
[Onomas-
ticon,]
VIII. vi
[VIII. 1.]
[under
word
dvfyo-
Xn+ia.}
XX XIV
[lxi.i3].
taken refuge with them if they do not freely surrender him ; I shall state the case in
accordance with the custom common to mankind, which bids us receive the fugitive.
The fourth point of criticism is that Aristocrates at once brings
the matter to a state of perfect war, when the law would have been
satisfied with an arrest.
3. Of these criticisms the first, second, and fourth are not
without reason. But the third objection, unless it is restricted to
the single case of killing by accident or in self-def ence, can only have
been offered rhetorically, and more for the sake of argument than
according to truth and right. For the law of nations that suppliants
shall be received and protected applies, as we have previously said,
only to those who are endangered by ill fortune and not by crime.
4. In other respects the law is the same for those among whom
the crime has been committed and for those who refuse to punish
or surrender the guilty person. Therefore either that very law, on
which Demosthenes relies, received from practice the interpretation
that I give, or afterward it was more explicitly formulated against
such quibbles. That one of these alternatives is true will not be
denied by any one who has given attention to the following definition
of Julius Pollux : * Seizure of men takes place when any one upon
demand does not receive murderers who have fled to some persons
for refuge, for in that case he has the right [446] to carry off as many
as three persons of those who have not surrendered the culprits.'
In the same sense Harpocration says : ' Seizure of men is the right
to carry off men from some city. For they used to take sureties
from a city which held a murderer and would not give him up for
punishment.'
5. Similar to this right of seizure is the right of detention of
citizens of another state in which a manifest wrong has been done
to a national, in order to secure his recovery. Accordingly at Carthage
certain persons prevented the seizure of Ariston of Tyre, giving it
as their reason that ' The same thing will happen to Carthaginians
both at Tyre and in the other commercial centres to which they go
in large numbers '.
Baldus,
Consilia,
III. 58;
Baxtolus,
On Re-
Prisals,
qu. v, ans.
to obj. 3,
no. 9.
IV. — An example in the seizure of goods
Another form of the enforcement of right by violence is ' seizure
of goods ' or ' the taking of pledges between difTerent peoples V
This is called by the more modern jurists the right of reprisals ;
by the Saxons and Angles ' withernam ', and by the French, among
whom such seizure is ordinarily authorized by the king, ' letters of
1 This is called (tvkas by Demosthenes in his oration For the Crown [For the Crown ojthe Trierarchy,
li. 13 - p. 1232] ; also by Aristotle, Economics, II [II. ii. 10].
Chap. II]
Goods of Subjects and Debt of Rulers
627
marque \ This enforcement of right occurs, as the jurists say,
where a right is denied.
V. — Seizure is warranted after a right has heen denied, and when it
may properly he considered as settled that this has heen done ;
wherein it is shown that a judicial decision does not properly give
or take away a right
1. Seizure by violence may be understood to be warranted not
only in case a judgement cannot be obtained against a criminal or
a debtor within a reasonable time, but also if in a very clear case
(for in a doubtful case the presumption is in favour of those who
have been chosen by the state to render judgement) judgement
has been rendered in a way manifestly contrary to law ; for the
authority of the judge has not the same force over foreigners as over
subjects.
Even among subjects such a decision does not cancel a true
obligation. ' A true debtor, even though he is absolved, still remains
a debtor by the law of nature,' * says Paul the jurist. ' And when
by a wrongful decision of a judge a creditor had taken away from its
owner, as if it had been bound over to him, property which did not
belong to the debtor, and the question was raised whether, after the
payment of the debt, this should be restored to the debtor, Scaevola
approved of its restitution.' There is this difference, that subjects
cannot legally hinder by force the execution of a judgement even
if it is unjust, or assert their rights by force against it, because of the
effectiveness of the authority over them ; but foreigners have the
right of compulsion, which they may not use, however, so long
as they can obtain what is theirs by a judgement.
2. The principle, therefore, was not introduced by nature,
but has been widely accepted in practice, that for such a cause
the persons,2 or movable property, of the subjects of him who does
not render justice, may be seized. The most ancient instance is
given by Homer, in the Iliad [XI. 674]. Here it is recounted that
Nestor seized the flocks and herds of the men of Elis in revenge for
the horses stolen from his father, ' taking reprisals ',3 as the Poet
1 Here applies what is said by Gail, De Pace Publica, II. viii. 7, and Vazquez, Conlroversiae illustres,
IV. x. 41.
2 See the example in Ammianus, Book XVII [XVIII. ii], where Julian detains certain of the
Franks until the prisoners should be set free according to the agreement. Add what Leo of Africa
has on the subject of Mt. Beni Gualid, Book III [ = p. 435].
3 You will find pvaia in this sense in the Selections on Embassies, from Polybius, no. xxxviii [ =p. 276],
where he speaks of the Achaeans acting against the Boeotians ; and in no. cxxiii [= p. 352] fivaidfciv
is found in the Excerpta Peiresciana [Excerpta de Virtutibus et Vitiis, I = p. 214] from Diodorus Siculus.
Elsewhere, however, the phrase pvaia fcaray-feWeiv is employed in speaking of war, as we shall say
shortly in III. iii. 7 ; for these things are closely connected.
Dig. XX.
v. 12. §1.
Innocent
and Panor-
mitanus,
On Decre-
tals, III.
xlix. 8 ;
Soto, III,
qu. iv,
art. 5.
Jac. de
Can., An-
charano,
Domin.,
Francis-
cus, On
Sext, V.
viii. 1 ;
Fulgosius
and Salic,
On Auth.,
Code, IV.
x ; Jac. de
Belvisio,
On Auth.,
Ut non
fiant
pignora ;
628
On the Law of War and Peace
[Book III
Syl., word
repressa-
lia ; Bar-
tolus, On
Reprisals ;
Guy de la
Pape, qu.
xxxii ;
Gail, De
Pigno., i
no. 5 ;
Yictoria,
De Iure
Belli,
no. 4: ;
Covarru-
On
V.
ult. 4, pt.
1». § 9-
. XI.
. II
[xxxiv. 4].
Halicar.,
VII [xii].
;il. xv.
16; xxi.
IX.]
;ii;. i.
2 and 13.
Decio,
Consiiia,
CCCli:
dus, On
Dizest, I.
xxii. 3.
says ; in this passage Eustathius explains ' reprisals ' as ' what is
confiscated in return for something, that is, dragged off and seized
in return for what has been previously taken \ The narrative goes
on to say that all those to whom anything was owed by the Eleans
were summoned by proclamation to secure their rights, surely,
Lest any one of his just due should be deprived.
Another instance is in Roman history, in the case of the Roman
ships which Aristodemus, the heir of the Tarquins, held at Cumae
as compensation for the property of the Tarquins. Dionysius of
Halicarnassus states that slaves, cattle, and money were held. Still
another instance is given by Aristotle, in the second book of the
Economics, on the law of the Carthaginians relating to seizure of the
ships of foreigners, ' if any one has a right of seizure ', as the condition
is there expressed.
VI. — Sucb seizure does not warrant the taking of human life
That for such a cause the lives of innocent subjects are liable,
has perhaps been believed among some peoples, because [447]
they supposed that every man has in himself a full right over his life,
and that it was possible to transfer this to the state. That supposition,
as we have elsewhere said, is by no means capable of proof, nor is it
in harmony with a more sound theology.
Nevertheless it may happen that those who wish by force to
hinder the enforcement of a right may be killed, not intentionally
but accidentally. But if this can be foreseen, we have shown elsewhere
that we ought rather to surrender the furthering of the right, in
accordance with the law of love. According to this law, particularly
for Christians, the life of a man ought to be of greater value than
our property, as has been proved in another connexion.
VII. — The distinction between what there is relating to this matter in
municipal law and in the law of nations
1. In this matter, no less than in others, we must take care not
to confuse the things which properly belong to the law of nations
and those which are established by municipal law or treaties between
peoples.
2. By the law of nations all subjects cf him who does the
injury are liable to the furnishing of sureties, provided they are
subjects from a permanent cause, whether native or immigrant, and
not persons who are present anvwhere for the purpose of travel or
for a brief residence. The furnishing of pledges is treated after the
manner of burdens which are imposed in order to pay the public
debts, and from which those are immune who are only temporarily
Chap. II]
Goods of Subjects and Debt of Rulers
629
subject to the laws of the place. However, ambassadors are excepted
by the law of nations from the number of subjects, provided that
they have not been sent to our enemies ; and their goods also are
excepted.
3. By the municipal law of states, however, the persons of
women and children are often excepted ; and in fact even the
property of those who are engaged in literary pursuits or come to
carry on trade. By the law of nations individuals possess the right
of taking sureties, as at Athens, in the seizure of men. By the municipal
law of many countries this right is ordinarily sought in some cases
from the supreme authority, in other cases from judges.
By the law of nations ownership is acquired over seized goods
by the mere act of seizure, up to the limit of the debt and expenditure,
in such a way that the residue shall be restored.1 By the municipal
law the parties concerned are usually summoned, and afterwards by
public authority the property is sold or assigned to those who are
affected. But for these and other topics reference should be made
to those who discuss the municipal codes ; on this subject particularly
Bartolus, who has written on reprisals.
4. A further statement I shall add, because it concerns the
mollification of this law, which is in itself sufficiently rigorous. Those
who, by not paying what they owe or by not furnishing satisfaction,
have given occasion for the taking of sureties, by natural and divine
law are bound to make good the damages 2 to others, who for that
reason have incurred a loss.
1 Gregoras, Book IX [IX. v], records that the Venetians followed this principle of justice, upon the
capture of the Genoese ships at Galata : ' But they did not destroy any of the cargo of the ships they
had taken, which cargo consisted of wheat and barley, and in addition salt fish from the Copaic and
Maeotic Marshes and the river Don. These they preserved with care, in their full measure, until they
should restore them intact upon the receipt of what was owed them.'
2 Plutarch, in his Cimon [viii = p. 483 c], says of the Scyrians : ' The majority did not wish to make
a monetary contribution, but they gave orders that those who possessed or had seized the property
of others should make good the loss.'
Aegidius
Regius,
De Actibus
Superna-
turalibus,
disp. 13,
dub. 7,
no. 117.
CHAPTER III
ON WAR THAT IS LAWFUL OR PUBLIC ACCORDING TO THE LAW
OF NATIONS ; AND THEREIN, ON THE DECLARATION OF WAR
I. — A public war according to the law ofnaiions is a war between different
peoples
[449] 1. In a previous passage l we began to say that by authors
of repute a war is often called lawful not from the cause from which
it arises, nor, as is done in other cases, from the importance of its
exploits, but because of certain peculiar legal consequences. Of
what sort a lawful war is, however, will best be perceived from the
definition of enemies given by the Roman jurists.
* Enemies are those who in the name of the state declare war
upon us, or upon whom we in the name of the state declare war ;
others are brigands and robbers ', says Pomponius. Similarly Ulpian :
Enemies are those upon whom the Roman people have publicly declared war, or who
have themselves declared war upon the Roman people ; others are called thieves and
brigands. And so he who has been captured by robbers is not their slave,2 and has no need
of the right of postliminy. But he who has been captured by enemies, as by the Germans
or Parthians, is a slave of the enemy, and recovers his former status by postliminy.
Paul says : ' Those who are captured by pirates 3 and brigands
remain free.' There is a further statement by Ulpian :
In civil contentions, although the state is thereby often injured, nevertheless the
destruction of the state is not aimed at ; the citizens who support either side after the
manner of enemies are not in the position of those who possess rights of captivity or
postliminy. In consequence it has been decided that for those who have been captured,
sold, and later set free, it would be superfluous to attempt to recover from the emperor
their free status, which they had not lost by captivity.
2. It needs only to be noted further that we may understand
that any one who has the supreme authority in a state may take the
place of the Roman people in our illustration. * An enemy ', says
Cicero, ' is the one that has a state, a senate, a treasury, the agreement
and concord of the citizens, and the power, if the course of events
leads thereto, to conclude peace and an alliance.'
I I.:
1 Hence the plot of the Potnulus of Plautus, and the Eunuch of Terence. Such a one was also
Eumaeus, Odyssey, XV [lines 402 ff.].
1 Pompey pronounced those free who had been captured by the pirates ; Appian, Mithridatic Wars
xiv. 96]. See also Hcrrera, vol. 11.
630
Chap. III] On War that is Lawful or Public 631
II. — The distinction between a people, although acting unjustly, and
pirates or brigands
1. Moreover, a commonwealth or state does not immediately
cease to be such if it commits an injustice, even as a body ; and
a gathering of pirates and brigands is not a state, even if they do
perhaps mutually maintain a sort of equality, without which no
association can exist. The reason is that pirates and brigands are
banded together for wrongdoing ; l the members of a state, even
if at times they are not free from crime, nevertheless have been united
for the enjoyment of rights, and they do render justice to foreigners.
If the treatment of members of other states is not in all respects
according to the law of nature, which, as we have showed elsewhere, [H. n
has become partly obscured among many peoples, it is at least accord- lJ
ing to agreements entered into with each state or in accordance with
customs.
Accordingly the scholiast on Thucydides notes that, at the time i[v].
when it was considered legitimate to plunder at sea, the Greeks
refrained from murder and raids by night, and from the seizure of the
cattle of ploughmen. Strabo relates that other peoples also, who xi[ii.
lived in like manner by plunder, upon returning home after being at
sea, sent word to the owners in order that these might, if they wished,
recover their stolen property at a fair price.2 To such persons
applies the passage in Homer's Odyssey, XIV : [xiv.
Themselves eager for loot, who to the land
Of strangers fare ; if gods above grant booty,
With laden ships they leave and homeward go,
And dread fear falls on those they leave behind.
[450] 2. In moral questions, furthermore, the principal
element is considered as determining the essential character. As
Cicero has rightly said in the fifth book On Ends : ' The whole of [v;XXX.
an object takes its name from that constituent of it which comprises
the most important elements and has the most far-reaching eftect.'
With this accords the saying of Galen : ' Names are taken from the
most potent element in the compound.' The same author often
designates such things as ' named after the chief element '.
Cicero, then, spoke too sweepingly when he said, On the Common- [in
wealth, Book III, that where an unjust man is king, or where the city^of''
aristocracy or the people itself is unjust, there is not a wicked state, but God, 11.
1 ' A mob not in lawful association. but brought together in order to commit wrong ' ; Procopius,
Vandalic War, II [II. xv].
2 Such were those who are mentioned by Saxo, XIV [p. 234]. To such a degree, as Plutarch [Cimon,
viii = p. 483 c] notes, the Scyrians had deteriorated in course of time : ' Although from antiquity they
had practised piracy at sea, finally they did not refrain from committing injury upon those who were
sailing to them to carry on trade.'
92.
XXi.]
632
On the Law of War and Peace
[Book III
On the City
of God,
XlX.xxiv.
Borys-
thcnitica
[Orations,
xxxvi =
P- 443L
and On
the Lam
[Orations,
Ixxv.end].
[On Con-
cord = p.
385 a B.]
[Digest,
XLIX.
xv. 24.]
[GaUic
War), VI
[xxiii].
Onthc
Customs
ofthcGer-
mans
[xlvi].
Annals,
XII
[xxvii].
Historics,
iv m.
Appian,
lllyrian
Wars [ii.
91.
none at all. In correction of this view Augustine says : ' Nevertheless,
I should not go so far as to assert that the people as such does not
exist, or that its organization is not a state, so long as there remains
some sort of union in a reasoning populace, associated through
harmonious participation in the things which it chooses.' A body
that is sick is nevertheless a body still ; and a state, although seriously
diseased, is a state so long as there remain tribunals and the other
agencies that are necessary in order that foreigners, no less than
private citizens, in their relations one with the other may there
obtain their rights. Dio Chrysostom ofTers a more correct judgement
in saying that the law (especially that which goes to make up the
universal common law) exists in a state just as the mind in the human
body ; for when this is taken away the state ceases to exist.1 In
the speech in which he urges the Rhodians to harmony, Aristides
shows that many good laws may exist even under a tyranny. Aristotle
in his Republic [Politics], Book V, chapter ix, says that if any one
presses the violence of the few, or of the people, too far, the state
first becomes full of faults, and finally ceases to be.
Let us illustrate this subject by examples.
3. We heard Ulpian saying above that captives taken by brigands
do not belong to those who capture them. He says further that
captives taken by the Germans lose their freedom. And yet among
the Germans marauding expeditions which are sent beyond the
borders of a state * involve no disgrace ', as Caesar states. Of the
Venedi, Tacitus says : ' With their marauding expeditions they
overrun the forests and mountains that lie between the Peucini and
the Fenni.' In another place he says that the Chatti, a famous people
of Germany, engaged in marauding expeditions. In the same author
the Garamates are a nation fertile in marauding expeditions, but
still a nation.
The Illyrians without distinction were accustomed to plunder
on the sea, yet a triumph was celebrated over them ; Pompey
celebrated no triumph over the pirates. So great is the distinction
between a people, however wicked it may be, and those who, although
not forming a people, associate together for the sake of crime.
[Judgcs,
xi. 3 ff]
[Justin,
XLI. iv ;
XLIV. ii.]
III. — Sometimes a transformation is effected
Nevertheless a transformation may take place, not merely in
the case of individuals, as when Jephthes, Arsaces, and Viriathus
instead of being leaders of brigands became lawful chiefs, but also in
1 Cicero, Leiters, X. i [X. i. i]« ' There are neither laws, nor courts, nor any semblance and
trace of a sute.'
Chap. III]
On War that is Lawful or Public
633
the case of groups, so that those who have only been robbers upon
embracing another mode of life x become a state. In discussing
brigandage Augustine says : c If by accessions of desperate men this
evil grows to such proportions that it holds lands, establishes fixed
settlements, seizes upon states and subjugates peoples, it assumes
the name of a kingdom.'
Onthe
City of
God, IV.
IV. — It is essential to the nature of a public war that it should have
the support of the sovereign power ; in what way this is to he
understood
What persons have the sovereign power, we have already stated.
Hence it may be understood that, if any possess the sovereign power
in part, they may to that extent wage a lawful war.
This principle apphes with even greater force to those who are not
subjects, but are allied on an unequal footing.2 So we learn from
history that all formalities of lawful war were observed between
the Romans and their allies, the Volsci, Latins, Spaniards, and Cartha-
ginians, although these had an inferior status in the alliance.
Cajetan,
On II. ii,
qu. 40,
art. 1.
V. — A declaration of war is also requisite
That a war may be lawful in the sense indicated, it is not enough
that it be waged by sovereign powers on each side. It is also necessary,
as we have said, that it should be publicly declared, and in fact
proclaimed so publicly that the notification of this declaration be
made by one of the parties to the other ; 3 whence [451] Ennius
spoke of battles proclaimed in advance. In the first book On Duties
Cicero says : c But the right usage of war has indeed been most
scrupulously prescribed by the fetial law of the Roman people.
According to this we are given to understand that no war is lawful
unless it is waged for the recovery of property, or has been previously
threatened and proclaimed.'
More concisely speaks an ancient writer in Isidore : c A lawful
war is one that is waged by declaration, for the recovery of property
or to repel enemies.' Thus Livy, in his description of a lawful war,
says that the war is waged openly and in accordance with public
[Cf.
Gellius,
xx. 10.]
[I. xi. 36.]
[Etymo-
logies,
XVIII. i.
I [xxvii.
3].
1 An example is found in the case of the Mamertini ; Diodorus Siculus, fragments [XXI. x and
XXII].
2 Like the Duke of Lorraine, in Krantz, Saxonica, XII. xiii. The city of Stralsund declared war
upon its Pomeranian rulers ; Krantz, Vandalica, XIV. xxxv.
3 Josephus, Antiquities [455] ofthe Jews, XV [XV. v. 3], says : ' It is not lawful to wage a war
that has not been previously declared.'
For examples of this practice among the nations see Krantz, Saxonica, XI [XI. v], and Oderborn
in his Life of Basilides, III. The opposite conduct of the Turk Olizasthlan [Chlizasthlan], and the
Serb Neemon, are censured by Nicetas, [On Manuel Comnenus,] III [III. vi] and IV [V. iv].
634
On the Law of War and Peace
[Book III
XXXI
[xiv. 10].
decree. Also, after relating that the Acarnanians had laid waste Attic
territory, he adds : * This was the first manif estation of hostile feelxng ;
afterward a lawful war was declared by decrees and voluntary pro-
clamations of the states.'
[lxxxvi].
[Ram.
Ant.,] I
[lviii].
[Tactica,
i-]
[Oraiions,
xxxviii =
P- 473]
[XXXV.
Ii. 2.]
VI. — What element in the declaration of war is in accordance with the
law of nature, and what is feculiar to the law of ?iations, is set
forth with distinctions
1 . To understand the foregoing passages, and others dealing with
the declaration of war, we must carefully distinguish what is due
according to the law of nature, what is not due by nature but is
honourable, what is required by the law of nations to secure the
effects peculiar to this law, and what, in addition, is derived from
the particular institutions of certain peoples.
In a case where either an attack is being warded off, or a penalty
is demanded from the very person who has done wrong, no declara-
tion is required by the law of nature. This is what Sthenelaidas,
the ephor, says in Thucydides : l ' We who have been wronged in
more than words are not to seek satisfaction in words or judicial
proceedings.' Latinus in Dionysius of Halicarnassus declares :
1 Every one who is attacked repels him who begins the war.' Aelianus,
quoting from Plato, says that a war which is undertaken to repel
force is proclaimed, not by a herald, but by nature. Hence Dio
Chrysostom, in his address To the Nicomedians, says : ' Most wars
begin without declaration.'
For no other reason Livy criticizes Menippus, an officer of
Antiochus, because he had slain certain Romans when war had not
yet been declared, and when no hostilities had been engaged in, so
that they could have heard that swords had been drawn or even that
blood had been shed ; by this he shows that either of these two
steps could have sufficed to justify the action. Not more necessary,
by the law of nature, is a declaration of war in case an owner wishes
to seize what belongs to him.
2. But whenever one thing is seized in place of another, or the
property of a debtor is taken for his debt, and all the more if one
wishes to take possession of the property of those who are subject
to the debt, then a demand for settlement is required, to establish
the fact that it is impossible in any other way to obtain what is ours
1 Sec also Thucydides, Book III [III. lvi], in the speech of the Plataeans : ' According to the law
that is in vogue among all peoples, it is right to defend ourselves against him by whom we are assailed
in a hostile manner.'
In Diodorus Siculus, Excerpta Peiresciana [i = p. 272], Flaminius ' called all the gods and men to
witness that the war had been begun by the king'. See also what is in Mari: riii. On war
that has not been declared see Dexippus, Selections on Embassies [ = frag. 22, p. 195, edit. Dindorf].
Chap. III]
On War that is Lawful or Public
635
or what is owed to us. For this is not a primary right, but a secondary
and vicarious right, as we have elsewhere explained. Thus, even before
the possessor of sovereign power is attacked for the debt or crime
of a subject, a demand for settlement should be made, which may
place him in the wrong, and in consequence of which he may be held
either to be causing us loss or to be himself committing a crime,
according to the principles which have previously been discussed.
3. But even in case the law of nature does not require that
such a demand be made, still it is honourable and praiseworthy to
make it,1 in order that, for instance, we may avoid giving oflence,
or that the wrong may be atoned for by repentance and compensation,
according to what we have said regarding the means to be tried to
avoid war.2 Here applies this verse also :
At first no one has sought to try extremes.
Here, too, applies the command which God gave to the Jews,3
that they should first invite to peace the city which was to be attacked.
This command, although given to that people for a particular case,
has been wrongly confused by some with the law of nations. For the
peace there referred to is not peace in general, but one dependent
upon a condition of subjection and tribute. [452] When Cyrus
came into the territory of the Armenians, before doing harm to
any one he sent to the king those who represented him in order to
demand the tribute and soldiery due according to the treaty, ' thinking
that this was a more friendly procedure than to advance without
a previous declaration ', as Xenophon says in his History. But by
the law of nations a proclamation is required in all cases in order
to secure these particular effects, not, however, from both parties
but from either one.
Deutero-
nomy,
XX. II
[xx. 10].
VII. — A declaration of war is sometimes conditional, sometimes absolute
1 . Now the declaration of war is either conditional or absolute.
It is conditional when it is joined with a demand for restitution.
Moreover, under the title of things sought in recovery,4 the fetial law
included not merely a claim by right of ownership, but also the
efTort to obtain that which is owed on a civil or criminal charge,
1 See Mariana, XXVII. xiii.
2 II. xxiii. 7.
3 Josephus, Antiquities ofthe Jews, V. ii [V. ii. 9] : ' But the council of the elders restrained them,
showing them that they should not suddenly wage war on their fellow citizens, before the causes of
complaint had been argued in words, since the law did not permit them to lead an army even against
foreigners when they had sufifered wrong, unless they had first sent an embassy and tried means by which
the wrongdoers might be brought back to a more reasonable frame of mind.'
4 See Paruta, On the War in Cyprus, Book I Bizarri, Book XXIII, with regard to the Turks ;
Reinkingk, II. 111. 4.
636
On the Law of War and Peace
[Book III
[II. i. 2. 2
xxi. 4.]
VIII
[xxiii. 7l-
Annals,
I [xlviii].
[385 ffj
[Thebaid,
XII. 598.]
[IV. liii.]
[Etymo-
logies,
XVIII. i.]
, I.
xxxii. zo.]
as Servius l rightly explains. Hence arises this phase in the formulas,
' to be restored, satisfied, surrendered ', where, as we have elsewhere
said, ' surrendered ' must be understood with a reservation, to wit :
unless those on whom the demand is made prefer to punish the guilty
party themselves. Pliny 2 bears witness that this demand for restitu-
tion was called a ' verbal demand '.
A conditional declaration is recorded by Livy : ' That they
would themselves use every means to free themselves from this
injury unless it were removed by those who had inflicted it.' Another
is given by Tacitus : ' unless they should inflict punishment upon
the guilty, he would carry out a general massacre.' There is also an
ancient example in the Suppliants of Euripides, when Theseus gives
to the herald these instructions for his mission to Creon the Theban :
Theseus, who holds the neighbouring kingdom's soil,3
The dead demands for burial ; granted that,
Erechtheus' people will become your friend.
If this with favour meet, retrace thy steps ;
But if no heed is given, these other words employ :
Let them soon look to see my youth in arms.
Papinius in his description of the same event has :
Proclaim either funeral pyres for the Danai
Or for Thebes, battles.
Polybius calls this ' to give notice of reprisals ', and the ancient
Romans ' to give formal notice '.
An absolute declaration is what is called in particular a proclama-
tion or edict. This is made when one party either has begun hostilities
(and this is what in Isidore is said to be a war for the repulse of
enemies), or has himself committed crimes that call for punishment.4
2. Sometimes, indeed, an absolute declaration follows one that
is conditional, although this is not necessary but superfluous. Hence
arises the formula :
I bear witness that this people is unjust, and does not give satisfaction.
There is also a second formula :
Whatever things, disputes, causes of complaint,5 of which the pater patratus of the
Roman people of the Quirites has formally notified the pater patratus of the people of the
1 On the Aeneid, X [line 14].
* [Natural History,] XXII. xii [XXII. xii. 2] : ' And when ambassadors were sent to the enemy
to rnake verbal declaration, that is, audibly to demand back the things that had been carried off, one
of them was called the Verbenarius.' Again, in speaking of the plant verbena, the same author says,
ix : 4 This it is which, as we have pointed out, the ambassadors carried to the enemy.' See
Servius, On the Aeneid, IX fline 53], and X [line 14].
• A similar formal declaration is in the Baltle oflhe Frogs and Mice [line 135 ff.], and at the begin-
ning of the Amphitruo of Plautus [203 ff .]. See also Kromer, XXI.
* See the example in Bembo, Book \ II.
• Compare the Greek of Dionysius of Ilalicarnassus, Selections on Embassies, ii [= p. 9].
Chap. III]
On War ihat is Lawful or Public
637
Ancient Latins, which things the men of the Ancient Latins ought to have surrendered,
done, paid, which things they have not paid nor surrendered nor done, these things I hold
ought to be sought in just and righteous warfare ; and I agree and approve.
The third formula is :
Whereas the tribes of the Ancient Latins have acted and committed oflences against
the Roman people of the Quirites, whereas the Roman people of the Quirites has ordered
that there be war with the Ancient Latins, and the Senate of the Roman people of the
Quirites has decreed, consented, agreed that war should be waged with the Ancient Latins,
for this cause I and the Roman people declare and make war upon the tribes of the Ancient
Latins.
That in this case, as I have said, a proclamation is not strictly
necessary, becomes apparent from the fact that it was formally made
at the nearest garrison point. So the fetials declared when consulted
in the case of Philip of Macedon, and afterward in the case of
Antiochus, since the first proclamation had to be made to the person
who was attacked in the war. The declaration against Pyrrhus
[453] was in fact made to one of his soldiers, and that too in the
Circus Flaminius, where this soldier was ordered to purchase a bit
of ground for form's sake, as Servius narrates in his commentary on
the ninth book of the Aeneid.
3. Further proof of the superfluity of this formality is found
in the fact that war is often declared by both parties. Thus the
Peloponnesian War was declared by the Corcyreans and by the
Corinthians, although it is sufficient that such a declaration be made
by either one party or the other.
Livv,
XXXI
[viii. 3]
and
XXXVI
[iii. 7]-
[IX. 52.]
[Thucy-
dides, I.
xxix.j
VIII. — What elements in declarations of war fertain to municipal law
and not to the law of nations
To the customs and institutions of certain peoples, moreover,
and not to the law of nations, belong the use of the herald's staff
among the Greeks ; * the sacred herbs and bloody spear used first
by the Aequicolae, then by the Romans, who followed their example ;
the renunciation of any existing friendship or alliance ; the period of
thirty days set after the demand for restitution ; the hurling of the
spear 2 the second time ; and other formalities of this sort which
should not be confused with those that properly belong to the law
of nations.
Arnobius informs us that in his time a great part of these
formalities had ceased to be observed ; and, indeed, some were
1 The origin of the herald's staff you will learn from Pliny, [Natural Hislory,] XXIX. iii, and
Servius, On the Aeneid, IV [IV. 242] and VIII.
2 See Servius, On the Aeneid, IX [IX. 53] ; Ammianus, XIX [XIX. ii. 6], with the r.otes of the
erudite Lindenbrog.
638
On the Law of War and Peace
[Book III
VTarro, On
the Latin
Language,
IV.
[LII. xv.]
Baidus,
0n Code,
VII. ix. 2,
no. 70.
XXXVI
[Ui.Xl].
already neglected in the time of Varro. The third Punic War was
begun at the same time with the declaration. In Dio, Maecenas holds
that certain of these formalities are peculiar to a democratic state.
IX. — A war declared against any one is at the same time declared
against his subjects and allies, in sofar as they take his side
Furthermore, a war declared against him who holds the sovereign
authority in a state is held to be declared at the same time not only
upon a)l his subjects, but also upon all who will join him as allies
in such a way as to become an accession to him. This is what the
more modern jurists mean when they say that defiance of the prince
is defiance of his supporters ; for to declare war they call to send
forth defiance.
This principle is to be understood as applicable to the type of
war waged against him upon whom it has been declared in the
manner illustrated in the war against Antiochus. It was decided not
to declare war against the Aetolians separately, because they had
openly associated themselves with Antiochus. ' The Aetolians have
voluntarily declared war against themselves ', was the response of
the fetials.
Livy,
XXXVI
[i. 5].
X. — A zvar declared against any one is not held to be at the same time
declared against his subjects and allies in so far as they are con-
sidered by themselves ; illustration by examfles
If, on the conclusion of a war declared against one who holds
the sovereign power, another people or king is to be attacked, because
of the aid that they have furnished, a new declaration of war will
have to be made in order to meet the requirements of the law of
nations. For in such a case the people or king is now not regarded
as an accessory, but as a principal. It was therefore rightly said that
the war of Manilius against the Gallo-Grecians and that of Caesar
against Ariovistus were not lawful wars according to the law of nations.1
The Gallo-Grecians and Ariovistus were in fact attacked not as
accessories to another war, but principals ; and for such a procedure
by the Roman law a new authorization of the Roman people was
required, just as a new declaration was required by the law of nations.
What was said in putting the question in regard to the war
against Antiochus : ' Did they desire, and did they direct, that war
be begun with King Antiochus and with any who had espoused his
1 Tnlawful also was that of the companions of Ulysses against the Ciconians, who were at one time
allies of Priam, and who are rnentioned by Homer, Odyssey, I [rather 1 ■» IX. 39 ff.], and Didymus
thereon.
Chap. III]
On War that is Lawful or Public
639
cause,' also wliat was provided in the decree against King Perseus,
should, as it seems, be understood as meaning, so long as there should
be a war with Antiochus or Perseus, and as referring to those who
actually had a part in this war.
[Livy,]
XLII
[xxxi. 1].
XI. — The reason why a declaration is required in order to secure certain
effects
Furthermore the reason why nations required a declaration
for the kind of war which we have called lawful according to the law
of nations was not that which some adduce, with the purpose that
nothing should be done secretly or deceitfully, for this pertains to an
exhibition of courage rather than to law, just as certain nations are
said to have even appointed the date and place of battle.1 The purpose
was, rather, that the fact might be established with certainty that
war was being waged not by private initiative but by the will of
each of the two peoples or of tbeir heads.
From this consideration arise the peculiar effects which do not
develop in a war against brigands, nor in a war which a king wages
against his subjects. Thus Seneca distinguishes ' wars declared upon
neighbours, or waged with citizens '.
On Anger,
III. ii.
XII. — The effects referred to are notfound in other wars
What certain writers point out and teach by citing examples,
to the effect that even in [454] such wars what is seized belongs
to those who take it, is indeed true, but only from one standpoint,
that of the law of nature. It is not true by the customary law of
nations, since this concerns nations only, not persons who have no
existence as a nation or form a part of a nation.
The writers in question err in this also, that they think that a
war undertaken for the defence of one's person or property does not
require a declaration. Such a war does require a declaration, not
indeed of itself, but for the sake of those effects of which we have
begun to speak, and which we shall shortly explain.
Ayala, I.
Alberico
Gentili,
II.ii[II.i],
just cited.
XIII. — Whether war may be waged simultaneously with its declaration
This also is not true, that war cannot be waged at once upon
being declared. That was the procedure of Cyrus against the
Armenians, and of the Romans against the Carthaginians, as we
1 Just as the Romans did to Porsena, as is recorded by Plutarch in his Publicola [xvi = p. 105 c].
The Turks kindle a great nurnber of fires two days before a battle ; Chalcocondylas, VII [ = p. 344,
edit. Bekker].
1569.27 X X
640 On the Law of War and Peace [Booklil
have stated above. By the law of nations, in fact, no interval of time
is required after the declaration. Nevertheless, it may happen that,
from the character of the afTair, by the law of nature some time may
be required, as when restitution or punishment for a guilty person
has been sought, and this has not been refused. In such a case time
must be granted in order that that which has been sought may be
properly performed.
XIV. — Whether war must be declared against him zvho has violated the
right of embassy
Even if the right of embassy has been violated, there will not
cease to be need of a declaration of war, for the sake of the efTects
of which I speak. However, it will be sufficient that this be made
in a way in which it may be done with safety, as by means of writing,
for example ; for custom sanctions the use of writing for both sum-
monses and other notices to be served in unsafe places.
[456] CHAPTER IV
ON THE RIGHT OF KILLING ENEMIES IN A PUBLIC WAR, AND ON
OTHER VIOLENCE AGAINST THE PERSON
I. — The effects of a public war are explained in general terms
I. On the verse of Virgil, \on
Aeneid,
Then to strive in hatred, then to plunder, X. 14.]
Will become permissible,
Servius Honoratus, after tracing the fetial law from Ancus Martius,
and more remotely from the Aequicoli, makes this comment :
If at any time it happened that either men or cattle had been carried off from the
territory of the Roman people by any nation, the pater patratus, with the fetials, that is,
the priests who preside over the conclusion of treaties, would set out, and standing
befoie the frontier would state the cause of war in a loud voice ; if they refused to restore
the things that had been carried off, or to surrender the wrongdoers, he would hurl
a spear toward them. This constituted the beginning of hostilities, and then it was
permissible to pillage in accordance with the usage of war.
Servius, moreover, had previously said : ' The ancients were [On
accustomed to use the words " to innict injury (laedere res) " where x^T^i
we say " to pillage (rapere) ", even if no crime of pillaging had been
committed ; in like manner they used to say " to make restitution
(res reddere) " where we say " to give satisfaction (satisfacere) 'V
From these facts we learn that a war declared between two
peoples, or the heads of two peoples, has certain particular effects l
which do not arise from the nature of war itself. This conclusion,
again, agrees excellentiy with what we have just now cited from the
Roman jurists.
II. — A distinction is made between the word ' permissible ' as referring
to that which is done with impunity, although not without moral
wrong, and to that which is free from moral wrong even if virtue
would enjoin not to do it ; with examples
1. But let us see the import of the ' will become permissible ' in
VirgiPs line. For sometimes that is said to be permissible which is
right from every point of view and is free from reproach, even if
there is something else which might more honourably be done, as
indicated in that statement of Paul the Apostle : ' All things (that 1 Curm-
Krantz, Saxonica, XI. v.
X X 2 641
thians, vi.
17 [vi. 12],
642
On the Law of War and Peace
[Book III
[To Pol-
Untius,]
I. xviii.
To Pollen-
tius, I. xv
[I. xiii,
xix].
XVIII.
§3-
[Insti-
tutts,] III.
III.
is of the sort which he had touched upon and was going to discuss)
are lawful for me, but not all things are expedient.'
Thus it is lawful to contract marriage, but for a holy purpose
the chastity of celibacy is more worthy of praise,1 as Augustine,
following the same apostle, wrote to Pollentius. Also to marry
a second time is lawful, but it is more honourable to be content
with one marriage ; this is according to the correct elucidation of
that question by Clement of Alexandria.2 A Christian husband may
lawfully leave his pagan wife, as Augustine thinks 3 (this is not the
place to discuss in what circumstances this is true), but he may also
keep her, and so Augustine adds : ' Either course is indeed equally
permissible according to the justice which waits upon the Lord ;
and so [457] the Lord forbids neither of them, but each one is
not expedient.' Ulpian says of the seller who is permitted to empty
out wine after the appointed day : ' Nevertheless it is more praise-
worthy if he does not empty it, when he might do so.'
2. In another sense, however, something is said to be per-
missible, not because it can be done without violence to right conduct
and rules of duty, but because among men it is not liable to punish-
ment.4 In this sense fornication is permitted among many peoples ;
among the Lacedaemonians and Egyptians even thieving was per-
missible. In Quintilian we find : ' There are certain things which
are not praiseworthy according to nature, but which are legally
1 Tertullian, Against Marcion, I [I. xxix], says : ' The proof of abstinence is wanting if permission
to act is taken away.' See on this point, and on the question of flight in time of persecution, the same
author, To his Wife, Book I [I. iii]. Jerome, Against Helvidius [On Perpetual Virginity, xxi], says : 'A
virgin is worthy of greater praise, because she despises that which she could do without sin.' [465]
Also Against Jovinianus [I. xii] : ' Christ loves the virgins the more for this, that of their own accord
they offer what was not demanded from them.' Again, To Pammachius [Letters, lxvi. 8] : ' Great
things are always left to the judgment of those who dare. Constraint is not laid upon you, to the
end that your will may attain the reward.'
Chrysostom, On First Corinlhians, vii [Homily XIX, ii, on verse 9], declares : ' He [Paul] shows that
chastity is preferable.' On Romans, vii. 6 [Homily XII. iv], he says : ' He has threatened us with
Gehenna, unless we obey his commands, and he shows that the things which he demands are not among
those which men may offer in zealous emulation, such as virginity and the renunciation of possessions,
but those which absolutely must be fulfilled.' In his second discourse On Fasling, II [On Penitence,
VI. iii], he says : ' He has left virginal chastity outside of the course, outside of the rules of the contest,
that those who offer it may show the greatness of their spirits, and those who do not offer it may enjoy
the mercy of God.' The same thought he shortly after applies to ' the renunciation of possessions '.
Add also what Gratian has cited from Augustine and other writers in Decretum, II. xiv. 1.
1 Slromata, IV [III. xii. 82], where, among other things, he says of the man who contracts a second
marriap : ' H< does not indeed sin against the covenant, for there is no law to prevent him, but he
does not accomplish the most excellent perfection of the life according to the Gospel.'
' In De Conjugiis Adulterinis ad Pollentium, I. xiii and xix ; from these passages Gratian has
cited at length in Decrelum, II. xxviii. 1.
* Tertullian, in his Exhortation to Chastily [chap. viii], says : ' Permission is oftentimes the trial
hing.' In the sarne passage : ' All things are permissible, but all things are not for lalvation.'
Chrysostom, On Penitence, VIII [VIII. iii, ed. Migne, vol. VIII, p. 762], says : ' He who lived upon
herbs and wild honey said with authority to him who was accustomed to have set before him a splendid
and regal table, " This is not permissible for you." Nevertheless all things appear permissible for a king.'
Columella, in the prtl k VII [On Farming, I. vii. 2], declares : ' We must not assert
^ht tO whatever ble, for the ancients held that the extreine enforcemenl "1 right is
extreme cruelty.' Jerome, To Jovinianus [To Innocentius, Letters, i. 14], says : ' The extreine inmtence
ht is the extreme of wickedness.'
Chap. IV]
On the Right of killing Enemies
643
Consider not what you may do, but that of which the doing will honour bring.
Musonius rebukes those kings ' who are in the habit of saying, " This
is permissible for me ", not " This is right for me ".'
3. In this sense we often see what is permitted contrasted with
what is right. Such a contrast is presented by Seneca the Father *
more than once in his Controversies. Ammiajius Marcellinus says :
' There are some things which it is not right to do, even if it is
permitted.' With this accords what Pliny says in his Letters : ' It
is right to avoid what is dishonourable, not as being not permissible,
but as being shameful.'
Cicero, again, in the speech For Balbus, has this : ' For there
is something which is not right, even if it is permitted.' In the
speech For Milo he refers the standard of right (fas esse) to nature,
and the standard of what is permissible (licere) to the laws. In
a declamation of Quintilian the Father there is a saying that it is
one thing to have regard to rights, and another to have regard to
justice.
[V. xix.
55.3
permissible ; thus according to the Twelve Tables it was permitted
to divide the body of the debtor among his creditors.'
This, however, is hardly a proper meaning of the word ' per-
mitted ' in the strict sense, as Cicero rightly observes in his Tusculan
Disputations, Book V. Here, speaking of Cinna, he says : ' To me,
on the contrary, he seems wretched not only because he did this,
but also because he so conducted himself that it would be permissible
for him to do it. Although it is not permissible for any one to do
wrong, still we are misled by an error of speech ; for we say that
that is permitted which each one is allowed to do.' This is, never-
theless, an accepted meaning, as shown by Cicero's address to the
judges in his plea For Rabirius Postumus : ' You should have regard [v. n.]
to what becomes you, not merely what is permissible for you ; for
if you seek only what is permitted you may remove from the state
whomsoever you wish.'
Similarly it is said that for kings all things are permitted because
they are ' not liable to be held accountable ', that is, they are beyond
the reach of human punishments, as we have said elsewhere. But
for the instruction of a king, or an emperor, Claudian rightly says :
[On the
Fourth
Consulship
of Hono-
rius,26ji.]
[In Sto-
baeus,
xlviii. 14.]
Ammia-
nus, XXX
[viii. 8].
Pliny,
V [xiii].
[iii. 8.]
[xvi. 43.]
III. — The effects of a public war in general are concerned wiih fer-
mission that grants impunity
With this restriction, therefore, it is permitted to harm an
enemy, both in his person and in his property ; that is, it is per-
In his Controversies, IV. xxiv [=VII. viii. 1], and elsewhere.
644
On the Law of War and Peace
[Book III
[On Public
Adminis-
traiion, ad-
dressed to
Caesar, II.
War,
I. xxxv.]
XXXIX
missible not merely for him who wages war for a just cause, and who
injures within that limit, a permission which we said at the beginning
of this book was granted by the law of nature, but for either side
indiscriminately.
As a consequence, he who happens to be caught in another's
territory cannot for that reason be punished as a murderer or a thief,
and war cannot be waged upon him by another on the pretext of
such an act. With this meaning we read in Sallust : ' To whom in
the hour of victory all things were permitted by the law of war.'
IV. — Why such effects have heen introduced
The reason why such effects met with the approval of nations
was this. To undertake to decide regarding the justice of a war
between two peoples had been dangerous for other peoples, who
were on this account involved in a foreign war ; just so the Massilians
said, in relation to the struggle between Caesar and Pompey, that
it was not within the province of their judgement or their power
to determine which party had the juster cause. Furthermore, even
in a lawful war, from external indications it can hardly be adequately
known what is the just limit of self-defence, of recovering what is
one's own, or of inflicting punishments ; in consequence it has seemed
altogether preferable to leave decisions in regard to such matters to
the scruples of the belligerents rather than to have recourse to the
judgements of others, The Achaeans in their speech to the Senate,
as recorded by Livy, -said : ' In what way do those things which
have been done in accordance with the law of war [458] come
under discussion ? '
In addition to this efTect of permissibility, that is of impunity,
there is another, that of ownership, which we shall discuss later.
V. — Testimony regarding these effects
1. Moreover that licence to injure, which we have now begun
to consider, extends in the first place to persons ; in regard to it
there are many evidences in writers of authority. There is a Greek
proverb from a tragedy of Euripides : *
Pure are all they who shed the blood of foes.
According to an ancient custom of the Greeks it was not lawful to
bathe, to eat or drink, and much less to perform sacred rites, in
company with those who had slain a man in time of peace ; but to
do so with those who had killed in war was right.
lon [line 1334].
Chap. IV]
On the Right of killing Enemies
645
In general, killing is called a right of war. Says Marcellus in
Livy : ' Whatever I have done to the enemy is defended by the law
of war.' In the same writer Alco says to the men of Saguntum :
' But I think that you ought rather to endure these things than to
sufTer your bodies to be butchered, your wives and children to be
seized and dragged off before your faces in accordance with the law
of war.' Again, in another passage, after telling of the slaughter of
the Astapenses, Livy adds that this was accomplished in accordance
with the law of war.
In his speech For Deiotarus, Cicero says : ( Why should he be
your enemy, when he remembered that he and his son had been
made kings by you, who would have been justified by the law of
war in killing him ? ' Also, in the speech For Marcus Marcellus :
( For although by the terms of victory itself you might lawfully have
slain us all, we were preserved by the mercifulness of your judge-
ment.' Caesar informed the Aeduans * That those through his
kindness had been preserved whom according to the law of war he
could have put to death '. Josephus says in his Jewish War : ( It is
a noble thing to die in war, but by the law of war, that is, at the
hands of the victors.' Papinius [Statius] has this :
And we mourn not the fallen ; such are the rights of war x
And hazards of arms.
2. However, it is clear from other passages that when these
writers say ( by the law of war ' we must not understand such a law
as would free what is done from all blame, but such immunity from
punishment as I have mentioned. Tacitus says : ( In peace we con-
sider causes and deserts ; when war breaks out, innocent and guilty
fall together.' The same author elsewhere has this : ( Human justice
would not permit them to approve such slaughter, nor the principles
of warfare to avenge it.'
In no other sense should we understand the right of war which,
according to Livy, the Achaeans refrained from availing themselves
of against Aeneas and Antenor because these had always been advocates
of peace. Seneca, in his tragedy the Trojan Women, says :
Whate'er he will, 'tis permitted the victor to do.
In his Letters, also : ' Deeds which they would atone for with their
lives if committed in peace, we praise them for having done under
arms.' 2
Cyprian declares : ( Murder committed by individuals is a crime ;
xxvi
[xxxi. 2].
[ix. 25.
[iv. 12.]
[I. i. 1.]
[335.]
1 Servius, On the Aeneid, II [II. 538], in the Fuldensian excerpts : ' In accordance with the law
of war Pyrrhus had slain Polites ; but why before his father's eyes ? ' Spartianus, in his Life ofSeptimius
Severus [chap. xiv]. writes : ' In addition to those whom the law of battle destroyed.'
2 Cf. II. i. 1, above.
646
On the Law of War and Peace
[Book III
Div. Inst.,
IV. ix
Pharsalia,
I
XXXVII
WIII.
xlviii. 9]
and nu-
merous
other pas-
sages.
;III. ii. 7.]
On Dig.
I.i.5-
when accomplished by public authority it is called a virtue. Wicked
deeds acquire immunity not on the plea that they are void of guilt
but because their ruthlessness is on a grand scale.' Later he adds :
1 The laws have come to terms with crimes ; whatever is public
begins to be permissible.' Similarly Lactantius says that the Romans
in accordance with law inflicted injuries. And in the same sense
Lucan speaks of ' right given over to crime '.
VI. — Out of this right arises the right to kill and injure all who are in
the territory of the enemy
Furthermore, this right of doing what is permissible has a wide
application. In the first place it extends not only to those who
actually bear arms, or are subjects of him that stirs up the war, but
in addition to all persons who are in the enemy's territory. This is
made plain by that very formula in Livy : ' Let him be accounted
an enemy, and those who are within his defences.' The reason is that
injury may be feared from such persons also ; and this is suflicient,
in a prolonged and general war, to give rise to the right which we
are discussing.
The situation is different from that which arises from the taking
of guarantees, which, as we have said, originated in the manner of
the impositions levied for the payment of the debts of a state.
Therefore, as Baldus notes, it is no wonder that much [459] more is
permissible in war than in the exacting guarantees.
At any rate what I have said is beyond all dispute true of
foreigners who enter hostile territory after a war has commenced
and they are aware of it.
Thucy-
dides,
VII. — What is the situation in case foreigners have entered a country
before the outbreak of war ?
But foreigners who have gone to a country in a period prior to
the war, after the lapse of a moderate time,1 in which they could
have departed, are apparently to be regarded as enemies according
to the law of nations. Accordingly the Corcyreans, who were going
to blockade Epidamnus, first gave to the foreigners an opportunity
of leaving the city, telling them that if they should remain they
ld be regarded as enemies.
1 Ben ■ thu principJfl in his speech For Liz,arius [ii. 4].
;ive an exarnplc in Li . \ V [XXV. xxii. 11], with regard to the citizens of Campania.
Others 1 ies, Books I and V [IV. cvj.
Chap. IV]
On the Right of killing Enemies
647
VIII. — The right to inflict injury extends to subjects of enemies any-
where, unless the law of the foreign territory prevents it
1. Now those who are truly subjects of the enemy, that is to
say from a permanent cause, may in respect to their persons be
lawfully injured in any place whatsoever, according to the law of
nations. For when war is declared upon any one it is at the same
time declared upon the men of his people, as we showed before in
the formula of declaration ; so also in the proposal for voting : ' Did
they wish, did they command, that war be declared upon King
Philip and the Macedonians who were under his rule? '
Moreover, according to the law of nations, any one who is an
enemy may be attacked anywhere. As Euripides says :
The laws permit to harm a foe where'er he may be found.
Marcianus the jurist says : c It is permissible to slay deserters, just
the same as enemies, wherever they may be found.'
2. Such persons therefore may be slain with impunity in their
own land, in the land of an enemy, on land urider the jurisdiction
of no one, or on the sea. The fact that it is not permissible to slay
or injure such persons in territory which is in a state of peace is
based on a right derived not from their persons but from the right
of him who exercises sovereignty there.1 For political societies were
able to agree that no violent measures should be taken against persons
who are in territory at peace except by recourse to legal proceedings ;
of such purport is the passage from Euripides which we have already
quoted :
If some charge against these guests you prove,
Justice you shall obtain ; by violence
You shall not drag them hence.
Where tribunals exist regard is had to the deserts of individuals,
and that promiscuous right of inflicting injury, which we say arises
as between enemies, there ceases. Livy2 records that seven Cartha-
ginian ships of war were in a harbour that fell under the authority
of Syphax, who at that time was at peace with the Carthaginians
and the Romans. Scipio came to the harbour with three ships of
war, which might have been sunk by the Carthaginians before they
entered the harbour ; but a strong wind brought them into port
Livy,
XXXI
[vi. 1].
[frag.
1076.]
[Children
o/Her-
cules,
251 ff.,
cited
above in
II. xxi. 6.
1 Compare what we have to say below, III. vi. [466] 26, and Alberico Gentili, Hispanica Advo-
catio, I. vi ; Wechner, Consilia Franconica, xcii.
2 For a similar act of the Venetians, who prevented the Greeks from injuring Turks in a port under
Venetian jurisdiction, see Chalcocondylas, IX [IX = p. 478] ; with regard to the Venetians and Turks
at Tunis, Bembo, IV ; with regard to the Pisans and Genoese in Sicily, Bizarri, On the Pisan War ; and
with regard to Rostock and Greifswald, Paulinus of Gotha.
648
On the Law of War and Peace
[Book III
before the Carthaginians weighed anchor. Then, in fact, the Cartha-
ginians did not dare to make any attack in the port since it belonged
to the king.
IX. — The right to inflict injury extends even over infants and women
i. But to return to the point under consideration : How far
this right to inflict injury extends may be perceived from the fact
that the slaughter even of infants and of women is made with
impunity, and that this is included in the law of war.
I shall not urge, in support of this statement, that the Jews
killed the women and children of the Hesbonites, and that they were
commanded to execute a like vengeance upon the Canaanites and
those who were allied with the Canaanites l ; for these are the works
of God, whose right over men is greater than that of men over
brutes, as we have explained elsewhere. Of greater pertinence, as
evidencing the common practice of nations, is the fact that in the
Psalms it is said that he will be happy who dashes the infants of
the Babylonians against a rock. This is paralleled by the saying
of Homer : 2
Bodies of infants dashed upon the ground,
While ruthless war all things afrYights.
[460] 2. In ancient times, as Thucydides relates, upon
capturing Mycalessus the Thracians slew both women and children.
Arrian records the same of the Macedonians when they had taken
Thebes. After Ilurgia, a city in Spain, had been captured,^ the
Romans * slew alike both children and women ', to use the words
of Appian.
Tacitus records that Germanicus Caesar laid waste the villages
of the Marsi, a people of Germany, with fire and sword, and adds :
ither sex nor age found mercy.' Titus even exposed Jewish
children and women to be slaughtered by wild beasts in a public
spectacle. And yet these two men are believed to have been by no
means cruel in disposition — to such an extent had cruelty of this
1 Like the Amalekites, of whom Josephus, in relating the history of Saul, VI. viii [Antiquities of
the Jews, VI. vii. 2J writes : ' He proceeded to slay even women and children, considering that in this
he was doing nothing cruel or contrary to human nature, first because those to whom he did it were
enemies,' &c.
* Severus, threatening the Britons, cited [in Xiphilinus, LXXVI. xvl these words from the same
Homer [lliad, VI. 58] :
Nor will he cruel fate escape,
Who still lies hidden in his mother's womb
after the capture of Numantia ; the soldiers of Julian, who llew the women that had
been left at Dacira, Zosimus. III [III. xv]. Ammianus in Book XIV [XXIV. Iv. »5] tayt that aftei
ane Julian had taken Majozamaltha ' the violenct of the enraged soldiery slew whatever they
met in their onset without disl • < 1
Chap. IV]
On the Right of killing Enemies
649
sort become a custom. It is, then, less surprising if old men too Aeneid, 11
are killed, as Priam by Pyrrhus. [550 ff.].
X. — Tbe right to inflict injury extends even over captives, and wiihout
limitation of time
1. Not even captives are exempt from this right to inflict
injury.1 In Seneca Pyrrhus says, in accordance with the accepted
custom of the time,
No law the captive spares or punishment restrains.
In the Ciris, attributed to Virgil, such is said to be the law of war,
even against captive women ; Scylla there speaks thus :
But by the law of war a captive you had slain.
Also in the passage cited from Seneca the killing of a woman, Polyxena
in fact, was under discussion. This practice gave rise to that saying
of Horace :
When you can sell a prisoner, slay him not ;
for the words imply the postulate that it is permissible to kill a captive.
Donatus says that those were called slaves (servi) who had been
saved (servati), ' when by the law of war they could have been killed '.
Thus the captives from Epidamnus were slain by the Corcyreans, as
Thucydides relates. Thus five thousand prisoners were put to death
by Hannibal. In the African War of Hirtius a centurion of Caesar
thus addresses Scipio : ' I thank you for having promised life and
safety to me, although a captive by the law of war.5
2. So far as the law of nations is concerned, the right of killing
such slaves, that is, captives taken in war, is not precluded at any
time, although it is restricted, now more, now less, by the laws
of states.
Trojan
Women
[3331-
[447-
[On
Terence's]
A delphi,
II. i [128].
I [xxx].
Appian,
Hann. Wars
|"iii. 14].
Dio Cass.,
XLVII
[xlviii].
[Hirtius,
African
War, xlv.]
XI. — The right to inflict injury extends even over those who wish to
surrender, but whose surrender is not accepted
Furthermore we meet with frequent examples of the slaughter
of suppliants, as by Achilles in Homer, and in Virgil the cases of
Mago and Turnus. These instances of the killing of suppliants, we
see, are related in such a way that they are defended by the law of
1 In Josephus [Antiquities ofthe Jews, IX. iv. 3] Elisaeus ' said that it was right to slay those who
had been made prisoners by the law of war '. And so Virgil [Aeneid, X. 524 f.] introduces a prisoner
who utters the prayer :
By the shades of thy sires, by thy hope in the youthful Iulus,
Preserve, I beseech thee, this life to my son and my sire.
Wittekind, Book II [III, p. 34], relates that Otho put to death 70,000 [700 in Wittekind's text] Slavs
who had been made prisoners.
650
On the Law of War and Peace
[Book III
City of
God, I. ii
[i. q.
Annals,
XII
. II
:. 6].
Dion.,
XLV
XI. III.
[Dio Cas-
sius, XL.
xii.]
[V. xxx.
77-1
VI.
xiii. 15.]
XII. xix/j
Historics,
I [xxxvii].
.' ries,
I. lxviii.]
war of which I have spoken. In fact, Augustine also, when praising
the Goths, who had spared suppliants and those that had taken
refuge in temples, says : ' What would have been permissible by the
law of war they judged was not permissible for them.'
Again, the surrender of those who give themselves up is not
ahvays accepted. Such was the case of the Greeks who fought in
the service of the Persians at Granicus ; in Tacitus is another instance,
that of the Uspenses, who sought pardon for their freemen : ' Their
plea the victors rejected ', he says, ' that they might rather perish
by the law of war.' Note here also the expression * the law of war '.
XII. — The right to inflict injury extends even over those who have
surrendered unconditionally
But you may read also that captives, whose unconditional sur-
render was accepted, have been put to death,1 as the rulers of
Pometia by the Romans ; Samnites, by Sulla ; Numidians, and
Vercingetorix himself, by Caesar.
There was indeed almost a permanent custom among the Romans
with respect to the commanders of the enemy, whether captured or
received by surrender, that they should be put to death on the day
of the Roman triumph.2 So Cicero informs us in his fifth oration
Against Verres, Livy both in Book XXVIII and elsewhere, Tacitus
in his Annals, Book XII, and many other authors. As Tacitus
also relates, Galba ordered the decimation of those whom he had
received under his protection as suppliants ; and Cecinna, after
receiving the surrender of Aventicum, punished Julius Alpinus, one
of the foremost men, as the instigator of the war, and left the rest
to the mercy, or savagery, of Vitellius.
[461] XIII. — // is incorrect to refer this right to other causes, as
retaliation, or obstinacy of defence
1. Sometimes historians assign the reason for the slaughter of
enemies, particularly of captives or suppliants, either to retaliation,
or to obstinacy in resisting ; 3 but these causes, as we have indicated
elsewhere, are plausible rather than justificatory. In fact, retaliation
that is lawful, and properly so called, must be inflicted upon the very
person who has done wrong, as may be seen from what has previously
been said on the sharing of punishment.
In war, on the contrary, what is called retaliation very frequently
brings harm to those who are in no wav to blame for that on which
XX [LXX. xvii], on the year 1580, with regard to events in Ireland.
1 There is a similar occurrence in the Chronicle of Regino for the year 905.
' As<: III.
Chap. IV]
On the Right of killing Enemies
651
the issue is joined. The point of view is thus set forth by Diodorus
Siculus : ' Having learned from actual experience, since the hazard
of war is the same for all belligerents, they were not unaware that
either side if defeated must expect to receive the treatment which it
would have accorded to the vanquished.' In the same author Philo-
melus, leader of the Phocians, ' made the enemy cease from their
insolent and cruel punishment by inflicting an equivalent penalty '.*
2. In truth there is no one who holds that an obstinate devotion
to one's party is worthy of punishment ; this is illustrated by the
reply of the Neapolitans to Belisarius, in Procopius. Thc statement
holds particularly true when the party to which allegiance is main-
tained has been assigned by nature, or chosen. for an honourable
reason.
In fact, so far from there being any crime involved in such
allegiance, it is accounted a criminal act to desert one's post. This
was insisted on especially in the military law of ancient Rome, which
in such cases hardly admitted any excuse of fear or danger. ' Among
the Romans to leave one's post is a capital crime ', says Livy. For
his own advantage, therefore, each one resorts to so extreme severity
in cases in which it seems expedient ; moreover, such severity is
defended among men by the law of nations, of which we are now
treating.
[XIV.
xlvi.]
[XVI.
xxxi.]
Gothic
War, I
[viii].
XIV. — The right to inflict injury extends over hostages also
This right to inflict injury has also been exercised against
hostages, not merely against those who had bound themselves, as by
an agreement, but also against those who have been surrendered by
others. In ancient times two hundred and fifty hostages were put
to death by the Thessalians ; and hostages of the Volsci Aurunci, to
the number of three hundred, by the Romans.
Furthermore we must remember that even boys were commonly
given as hostages ; we read that this was done by the Parthians and
by Simon, one of the Maccabees. Women also were given as hostages
by the Romans in the time of Porsena, and by the Germans, according
to Tacitus.
XV. — By the law of nations it is forbidden to kill any one by means
of poison
1. However, just as the law of nations, through that form of
permission which we have now explained, permits many things which
1 See the same Diodorus on Spondius and Hamilcar Barca in the Excerpta Peiresciana [Excerpta
de Virlutibus et Vitiis, i = p. 262].
652
On the Law of War and Peace
[Book III
XLIl
Gildo
[274]-
On Dutxes,
III >3rii.
86].
[Attic
Mghts,}
III. i
VI. v. 1].
Annals,
III II.
Ixxx-.
II. 188.
are forbidden by the law of nature, so it forbids certain things which
are permissible by the law of nature.' If you take account only of
the law of nature, in case it is permissible to kill a person, it makes
no dirference whether you kill him by the sword or by poison. By
the law of nature, I repeat, for it is indeed more noble to kill in such
a way that he who is killed may have a chance to defend himself ;
but this is not an obligation due to one* who has deserved to die.
Xcvertheless from old times the law of nations — if not of all nations,
certainly of those of the better sort — has been that it is not permissible
to kill an enemy by poison.
reement upon this matter arose from a consideration of the
common advantage, in order that the dangers of war, which had
begun to be frequent, might not be too widely extended. And it
is easy to believe that this agreement originated with kings, whose
lives are better defended by arms than those of other men, but are
less safe from poison, unless they are protected by some respect for
law and by fear of disgrace.1
2. In speaking of Perseus Livy calls the poisoning of enemies
secret crimes. Claudian, in discussing the plot against Pyrrhus which
was rejected by Fabricius, characterizes it as impious, and Cicero,
touching on the same story, refers to it as an atrocity. From the
point of view of an example for all, it is important that no such
deed be done, say the Roman consuls [462] in the letter to Pyrrhus
which Gellius quotes from Claudius Quadrigarius. In Valerius
Maximus is the saying, ' Wars ought to be waged with weapons, not
with poisons.'
Tacitus records that, when the leader of the Chatti offered to
bring about the death of Arminius by poison, Tiberius refused the
ofler, by this glorious act placing himself on a level with the generals
of olden days. Wherefore those who argue that it is permissible to
kill an enemy by poison,2 as does Baldus, following Vegetius, have
regard to the law of nature only ; they quite overlook that which
takes its rise in the will of the nations.
M the
i5ff-]
XVI. — By the law of nations it is forbidden to foison weapons or waters
1 . DifTerent in a degree from poisoning of this sort, and more
closely allied with the use of force, is the poisoning of javelins. This
is a doubling of the causes of death which Ovid relates of the Getae,3
1 The senators [the Consuls, rather] wrote to Pyrrhus : ' that if anything should hefall you it may
trny upon h, Fyrrhus, xxi=p. 396 c].
-ee Bembo, Book III, end.
iiiny, [Natural History,] XI. liii, observes : ' The Srythians foul their arrows
with the poison of vipers and human blood ; this wickedness, for which no remedy can be found,
produces death at once by a light touch.' On the Serbians see Helmold, Suf<f>ln>unt, chap. iv.
Chap. IV]
On the Right of killing Enemies
653
Lucan of the Parthians, Silius of certain of the Africans, and Claudianus
of the Ethiopians in particular. But this also is contrary to the law
of nations,1 not indeed of all nations, but of European nations, and
of such others as attain to the higher standard of Europe.
John of Salisbury has rightly stated the principle in these words :
' I do not read that it is permissible under any law to use poison,
although I see that poisoning is sometimes resorted to by unbelievers.'
Of like implication are the words of Silius, ' To disgrace iron with
poison.'
2. The poisoning of springs also, though the act either is not
secret or does not long remain so, is said by Florus to be not only
contrary to ancestral custom but also contrary to the law of the
gods ; just as we have pointed out elsewhere, writers frequently
ascribe the laws of nations to the gods. It should not indeed seem
remarkable if there exist some such tacit agreements among belli-
gerents to lessen the risks of war, when in olden times the Chalcidians
and Eretrians, while at war, covenanted ' not to make use of missile
weapons \
II [xxl
[II. xix.
1.2.]
XVII. — It is not forbidden by the law of nations to pollute waters in
another way
The rule just stated has not been established in regard to the
pollution of waters without the use of poison,2 in such a way that
one cannot drink from them. Such pollution, we read, Solon and
the Amphictyons considered lawful against barbarians ; and according
to Oppian, in his On Fishing, Book IV, it was customary in his
time. This is considered to be like the diverting of a river, or cutting
off the ve.ins of a spring,3 which is permissible by nature and by
convention.
XVIII. — Whether or not the use of assassins is contrary to the law of
nations
1. The question is frequently discussed whether, according to
the law of nations, it is permissible to kill an enemy by sending an
assassin against him.
In general a distinction must be made between assassins who
violate an express or tacit obligation of good faith, as subjects resorting
to violence against a king, vassals against a lord, soldiers against him
Pausanias,
ult. [X.
xxxvii]
Frontinus,
[Strata-
gems,] III
[vii. 6] :
Aeschines,
On the
Badly .
Conducted
Embassy
[cxv].
[Halieu-
tica, IV.
687 f.]
1 And so Ilus, the son of Mermerus, refuses Ulysses poison for his spears, Odyssey, I [I. 263] :
[467] Fearing the wrath of the immortal gods.
2 With corpses, or with asbestos, which Belisarius used in the siege of Auximium, Procopius,
Gothic War, II [II. xxvii] ; or with lime, as the Turks at Dibra, Nicetas, On Alexis, I [I. vii], brother
of Isaac [Comnenus]. Similar acts are related by Otto of Freising, and Gunther, Ligurinui.
3 See Priscus, Seleclions on Embassies [p. 29].
654
On ihe Law of War and Peace
[Book III
xxxi.]
III. iii
i. i].
48.]
Justin, II
>i.i5].
XXVII
[xxvii] .
Tacitus,
Histories,
V [xxii].
On Duties,
I. xl [197].
;..l4].
Digest,
III.
v § 6.
whom they serve, those also who have been received as suppliants
or strangers or deserters, against those who have received them ;
and such as are held by no bond of good faith. In the latter class
is Pepin,1 the father of Charlemagne, who, accompanied by one
attendant, is said to have crossed the Rhine and to have slain an
enemy in his bedchamber ; a similar deed was attempted upon
Ptolemy of Egypt, and Polybius, attributing it to Theodotus the
Aetolian, calls it ' a manly deed of daring '.
Of such a character was also the attempt of Quintus [Gaius]
Mucius Scaevola,2 celebrated by historians, which he himself defended
thus : ' As an enemy I wished to slay an enemy.' Porsena himself
>aw nothing but bravery in this deed. Valerius Maximus calls it an
attempt free from reproach and brave ; and Cicero also praises it
in his speech For Publius Sestius.
2. Not merely by the law of nature but also by the law of
nations, as we have said above, it is in fact permissible to kill an
enemy in any place whatsoever ; and it does not matter how many
there are who do the deed, or who suffer. Six hundred Spartans
with Leonidas entered the hostile camp of the enemy and made
straight for the tent of the king. The same venture would have
been permissible for a smaller number.3 Those were few in number
who from an ambuscade surrounded and slew the consul Marcellus ;
and few likewise were those who all but stabbed Petilius Cerialis in
his bed. [463 ] Ambrose praises Eleazer 4 for attacking an elephant
which towered above the rest, in the belief that the king was seated
thereon.
According to the law of nations not only those who do such
deeds, but also those who instigate others to do them, are to be
considered free from blame. Scaevola was incited to his daring deed
by those Roman senators of old, who were so scrupulous in warfare.
3. No one ought to be influenced by the fact that when persons
who have made such attempts are caught they are usually subjected
to refined tortures. This result does not follow because they have
violated the law of nations, but because, by that same law of nations,
anything is permissible as against an enemy. In such cases, however,
each decides upon a more severe or more lenient punishment from
the point of view of his personal advantage.
:.efrid [Paulus Diaconus], VI [VI. xxxvii].
2 Who is, in Plutarch [Publicola, xvii = p. 106 B], ' a man pre-eminent in all virtue '.
' \ ^ed a monetary reward to any one who should have brought in the head of a Scy thian.
Thus peace wus - / limus, IV [IV. xxii].
: 'hus Anliquilies of the Jeivs, XV. xiv [XII. ix. 4]. A similar act of Theodosius against
Eugen, . I\' [ IV. Kiii] ; of th( I linst the Persian king, in Agathias ;
• Julian, in Anunianus, XXIV [XXIV. iv. .}], and Zosimus, III |III. xx]; of
AJexius Comnenu Nicetas of Chonae, On Manuel, IV [IV. iv] ; and of the Bulgars
against the Emperor Nicephorus, in Zonaras [XV. xv].
Chap. IV]
On the Right of killing Enemies
655
Under these conditions spies, whose sending is beyond doubt
permitted by the law of nations — such as the spies whom Moses sent
out, or Joshua himself — if caught are usually treated most severely.
1 It is customary ', says Appian, ' to kill spies.' Sometimes they are
treated with justice by those who clearly have a just care for carrying
on war ; by others, however, they are dealt with in accordance with
that impunity which the law of war accords. If any are to be found
who refuse to make use of the help of spies, when it is offered to
them,1 their refusal must be attributed to their loftiness of mind
and confidence in their power to act openly, not to their view of
what is just or unjust.
4. But a different point of view must be adopted in regard to
those assassins who act treacherously. Not only do they themselves
act in a manner inconsistent with the law of nations, but this holds
true also of those who employ their services. And yet, in other
things those who avail themselves of the aid of bad men against an
enemy are thought to sin before God, but not before men ; that is,
they are thought not to commit wrong against the law of nations,
because in such cases —
Custom has brought law beneath its sway ;
and ' to deceive ', as Pliny says, ' in the light of the practices of the
age, is prudence '.
Nevertheless the warrant of custom in such cases does not extend
to the right of killing ; for he who makes use of another's treachery
in causing death is believed to have violated both the law of nature
and the law of nations. This is apparent from the words of Alexander
to Darius : ' You are waging an unrighteous war ; and, although
you have arms, you set a price on the heads of your enemies.' Later
he says : ' You who have not even observed the laws of war towards
me.' In still another passage : ' I must pursue him to the death,
not as a just foe, but as an assassin and a poisoner.'
Of similar purport is the statement concerning Perseus : ' He
was not undertaking a just war with the spirit of a king, but was
making his attacks by means of all the secret crimes of robbers and
poisoners.' In treating these same deeds of Perseus, Marcius Philippus
said : ' In the ruin of his fortunes he will perceive how hateful all
his acts are to the gods also.' Here, again, the statement of Valerius
Maximus applies : ' The slaying of Viriathus 2 produced a twofold
1 See Kromer, [Book V,] p. 113.
2 The author of De Viris lllustribus [Aurelius Victor, lxxi] says : ' This victory, because it had
been purchased, was not approved of by the Senate.' Eutropius [IV. xvi] says : ' When his murderers
sought the reward from the consul Caepio, they received the reply that the Komans never approved of
a general being killed by his own troops ' ; perhaps one should read ' the reward promised by the
consul Caepio ' . Similarly the assassination of Sertorius is condemned by Ammianus, XXX [XXX.
i. 23].
1569.27 Y y
Punic
Wars
[xxxix] .
[Plautus,
Trinum-
wms,io37."J
Letters,
VIII
[xviii. 3],
To Rufinus
Curtius,
IV [i.
12-13].
XIV [IV.
xi. 18].
Livy,
XLII
[xviii. 1].
Livy,
XLIV
[i. 10].
IX. vii
[IX.vi.4].
656
On the Law of War and Peace
[Book III
Justin,
XII v
ioff.].
[Oedipus
the King,
Mi.]
[Oedipus,
242.]
[Gellius,
III. viii.]
Annals,
XI >ix].
VII v.
20].
charge of treachery : against his friends, because he was killed by
their hands ; against Quintus Servilius Caepio, the consul, because
he was the instigator of the crime by his promise of immunity, and
did not earn his victory, but purchased it.'
5. The reason why in this matter men have reached a con-
clusion difFer,ent from that adopted in other cases is the same that
we advanced above with regard to the use of poison. It has in view
the purpose to prevent the dangers to persons of particular eminence
from becoming excessive. According to Justin, Eumenes declared
that ' he did not believe that any general wished to conquer by such
means that he would set a very bad example against himself '.
In Justin, again, the murder of Darius by Bessus is said to be
an example and a cause common to all kings ; and, in Sophocles,
Oedipus, when about to avenge the death of King Laius, says :
Then in avenging him I serve myself.
Likewise in Seneca's tragedy on the same theme :
Kings, above all, king's safety must protect.
The Roman consuls wrote in a letter to Pyrrhus : ' It seemed an
example of good faith for all that we should desire your safety.'
6. In a public war, therefore, or among those who [464] have the
right to declare a public war, the practice under consideration is not
permissible ; however, apart from a public war, by the same law of
nations it is held to be permissible. Accordingly, Tacitus does not
admit that a plot of this sort laid against the renegade Gannascus
was degrading.1 Curtius says that the treachery of Spitamenes could
seem less hateful, since no one thought anything wicked that was
done against Bessus, who slew his king. So, too, treachery towards
robbers and pirates is not indeed blameless, but goes unpunished
among nations by reason of hatred of those against whom it is
practised.
XIX. — Whether rape is contrary to the law of nations
1. You may read in many places that the raping of women in
time of war is permissible, and in many others that it is not per-
missible. Those who sanction rape have taken into account only the
injury done to the person of another, and have judged that it is not
1 Thus Ammianus [XXVI. ix. 10] says of Florentius and Barchalba, who handed over the rebel
Procopius : ' If they had betrayed a legitimate prince, justice itself would have declared that they
could have been rightly killed ; but if they had betrayed a rebel and an opponent of peace within
the state, as it was said, they should have received a rich reward for the memorable deed.' So Arta-
banes is praised for th< .ntharides. in the historian Procopius, Vandalic War, at the end of
Book II [II. xxviii]. Compare Kromer, Book XXVI II [p. 604], on the killing of Sechodolius.
Chap. IV]
On the Right of killing Enemies
657
inconsistent with the law of war that everything which belongs to
the enemy should be at the disposition of the victor. A better
conclusion has been reached by others, who have taken into con-
sideration not only the injury but the unrestrained lust of the act ;
also, the fact that such acts do not contribute to safety or to punish-
ment, and should consequently not go unpunished in war any more
than in peace.
The latter view is the law not of all nations, but of the better
ones. Thus Marcellus, before capturing Syracuse, is said to have
taken pains for the protection of chastity,1 even in the case of the
enemy. In Livy, Scipio says that it is a matter of concern for himself
and for the Roman people ' that they should not violate what is
anywhere held sacred '. ' Anywhere ', that is to say, among the
more advanced peoples. Diodorus Siculus says of the soldiers of
Agathocles : ' They did not abstain from insults and lawlessness 2
towards women.' Aelian, having related that the chastity of the
women and girls of Pellene was violated by the victorious Sicyonians,
exclaims : ' These are most brutal acts, ye gods of Greece, and not
held honourable even among barbarians, so far as my memory serves.'
2. Among Christians 3 it is right that the view just presented
shall be enforced, not only as a part of military discipline, but also
as a part of the law of nations ; that is, whoever forcibly violates
chastity, even in war, should everywhere be subject to punishment.
No one could have committed such an act with impunity under the
Hebraic law, as may be perceived from that part which deals with
the taking of a woman 4 captive and not subsequently selling her.
On this passage the Jewish rabbi Bacchai comments : ' God wished
that the camp of the Israelites should be holy, not abandoned to
fornication and other abominations like the camps of the Gentiles.'
Arrian, after relating that Alexander, captivated by the love for
Roxane, ' did not desire to misuse her as a captive, but thought it
proper to marry her ', adds his approval of the act. Of the same
act Plutarch says : ' He did not misuse her, but took her to wife,
as was becoming for a philosopher.' Plutarch relates also that
a certain Torquatus was banished to Corsica 5 by a decree of the
Romans, because he had violated a maiden of the enemy.
1 Also Lucullus, according to Xiphilinus [Dio Cassius, XXXVI. iv]. See the proclamation of the
Moor Cabaon in Procopius, Vandalic War, I [I. viii].
2 Appian, Mithridatic Wars [xlvii], says of the captured Chians : ' The women and children were
barbarously violated by those who carried them off.'
3 Belisarius everywhere observed this, as did Totila at the capture of Cumae and Rome. This
is recorded by Procopius, Gothic War, III [III. i, viii and xx].
4 As Philo eloquently explains in his book, On Humanity [xiv]. Says Josephus, Against Apion,
II [II. xxix. 212] : ' The law also cared for prisoners of war, that they might be protected, especially
the women, from insult.'
5 But Chosroes, the Persian king, crucified a man who had assaulted a girl of Apamea ; Procopius,
Persian War, II [II. xi].
Yy2
Augustine,
City of
God, II
[I. vi].
[XIX.
viii.]
Various
History,
VI [i].
[Anabasis
of Alex-
ander, IV.
xix. 9.]
xi = p.
332 E.]
Parallels
[xiii=p.
308 F].
On Dutus,
32]-
[V. xi.]
XXXI
[xxx. 2-
Annals,
XIII
[468] CHAPTER V
ON DEVASTATION AND PILLAGE
I. — Enemy property may be destroyed and fillaged
That it is not contrary to nature to despoil him whom it is
honourable to kill,1 was said by Cicero. Therefore it is not strange
that the law of nations has permitted the destruction and plunder
of the property of enemies, the slaughter of whom it has permitted.
Consistently with this, Polybius in the fifth book of his Histories says
that the plunder or destruction of enemy fortifications, harbours,
cities, men, ships, crops, and anything else of the kind, is included
in the law of war. We read in Livy that ' there are certain rules
of warfare which it is proper for us both to enforce and to endure :
the burning of crops, the destruction of buildings, and the driving
orT of men and cattle as spoil.'
On almost every page of historical writings you may find accounts
of the destruction of whole cities, or the levelling of walls to the
ground, the devastation of fields, and conflagrations. It must be
noted furthermore that such acts are permissible also against those
who have surrendered. ( The townsmen ', says Tacitus, ' voluntarily
opened the gates and placed themselves and their belongings in the
hands of the Romans, and this secured safety for themselves ; but
Artaxata was set on fire.'
vii. 36.
[IV. lv.
122.]
II. — Even enemy froferty that is sacred may be destroyed and pillaged ;
how this is to be understood
1. Now the law of nations in itself, apart from the consideration
of other obligations of which we shall speak below, does not exempt
things that are sacred, that is, things dedicated to God or to the
gods. ' When places are taken by the enemy, all things cease to be
sacred ',2 says Pomponius the jurist. ' Victory had made profane
thc sacred things of Syracuse , says Cicero in his fourth oration
Against Verre's.
1 Suetonius, Nero, xl : ' As though by the law of war an occasion had arisen for plundering the
wealthiest provinces'. Cyprian, On Mortality [chap. viii] : ' So when possession has been taken of
a state through an invasion of enemies, captivity falls upon all alike.'
1 Tertuilian, Af>olo%y fxxv] : 4 Furthermore wars and victories consist very often in the capture
and dc | cities. Such procedure is not without injury to the gods. There is the same destruc-
tion of fortifications and of temples, a like liaugatering of citizens and ol priests, a like plnndering o£
treasures sacred and profane. Thus the sacrileges of the Romans are as numerous as their trophies,
their triumphs over gods as numerous as those over peoples ; and their spoils of war are numbered
by the images of captured gods which remain unto this day.' Soon after [xl] : ' And rightly so, for if
any reverse h as overtaken the cities their temples have suffered the same ruin as their walls.'
658
Chap. V]
On Devastation and Pillage
659
The reason is that the things, which are called sacred, are in
fact not withdrawn from human use, but are public x ; however,
they are called sacred from the purpose to which they are devoted.
The proof of what I say is that when any people surrenders itself
to another people, or to a king, there are also at the same time
surrendered the things which are called divine. This is clear from
the formula which we have cited elsewhere from Livy ; and with
that the verse in the Amphitruo of Plautus agrees,
Their city, lands, their altars, hearths, and persons
Let them give up ;
and then
They yield themselves and all possessions, human and divine.
2. In consequence Ulpian says that even sacred things are
included under public law. In his description of Arcadia Pausanias
says that it was a custom common to both Greeks and barbarians,
that sacred things should be at the disposal of those who had captured
cities. Thus he relates that when Troy was taken the image of
Hercaean Jupiter was granted to Sthenelus ; and he gives many
other examples of the same custom. Thucydides, in Book IV,
says : ' It was the custom among the Greeks, that those who had
power over a country, whether large or small, should also possess
its shrines.' 2 With this agrees the statement in Tacitus : ' In the
Italian towns, all ceremonies, and temples, and statues of the gods,
are subject to the Roman law and authority.'
3. Hence, furthermore, a people, having changed its mind,
may make profane what has been sacred, as is clearly indicated by
the jurists Paul and Venuleius. We see that, under the necessity
of the times, sacred things have been converted to the uses of war 3
by those who had consecrated them. This, we read, was done by
Pericles, though with a promise of restitution, by Mago in Spain,
I. iii. 8
[Livy,
VII. xxxi.
4]-
[226.]
[258.]
[IV.
xcviii.]
Annals,
XII [III.
Ixxi].
Digest,
XLV. i.
83. § 5,
and 137.
§6.
1 Marsilius of Padua in the Defensor Pacis, chap. v, pt. 2 ; Nicolas de Bohier, Decisions, lxix, no. 1 ;
Bossius, Practica Criminalia, De Foro Competente, no. 101 ; Cothmann, Consilia, c, no. 30.
2 This custom is also revealed by a passage from Polybius cited below, III. viii. 4.
3 As by the Syracusans in the time of Timoleon, in whose life Plutarch records this [Timoleon,
xxiii = p. 247 e]. The Chians made up even from the sacred vessels the fine which Mithridates laid
upon them ; Appian, Mithridatic Wars [vii. 47]. Pliny, Book VII, last chapter [Natural History, XVII.
xxviii. end], in speaking of Marcus Porcius Cato, says : ' He sanctioned the cutting down of sacred
trees [471] and groves, after the offering of sacrifice ; and he has handed down the reason for this
in the same volume.'
In the Mithridatic War, Sulla removed the votive offerings from Olympia, Epidaurus, and Delphi,
as is related by Plutarch [Sulla, xii = p. 459 b] and Appian [Mithridatic Wars, viii. 54] ; and he also
restored their value ; Diodorus Siculus in the Excerpta Peiresciana [Excerpta de Virtutibus et Vitiis,
i = p. 322]. Augustus borrowed treasures from the temples, as we learn from Appian, Civil Wars,
V [V. ii. 13]. Cassiodorus relates that Agapetus gave sacred vessels in pledge, [Variae,] XII. xx.
In time of grave need Heraclius coined money from the vessels of the Church, buc afterwards
restored their value, as Theophanes relates. See also Anna Comnena, V [V. ii] and VI [VI. iii] ; Kromer,
XXIII ; and the speech of Laurentianus in Bembo, Book VI. Add what is to be said below in III.
xxi. 23.
66o
On the Law of War and Peace
[Book III
[Tiberius
Gracchus,
xv =
p. 832 A.]
Satumalta,
III :
Annals, I
prj.
[Aeneid,
XII.
778 £.]
VIII
Against
. III
[I.xxi.57].
XXV
[Xl. *].
[Livy,
VIII.
xliii. 10.]
K ! X
[Catiline,
by the Romans in the Mithridatic War, [469] by Sulla, Pompey,
Caesar, and others. In Plutarch Tiberius Gracchus says : * There
is nothing so sacred and holy as orlerings to the gods. Nevertheless
no one has hindered the people from using, moving, or transferring
these.'
In the Controversies of Seneca * the Father we read : ' Often-
times the temples are stripped for the sake of the state, and we melt
down offerings to serve as pay.' Trebatius, a jurist of the time of
Caesar, says : ' That is profane, which, from being religious or
sacred, has been transferred to the use and ownership of men.' 2
Of this law of nations, therefore, Germanicus made use against the
Marsi, when, as Tacitus relates : ' Profane and sacred structures alike,
even the temple most famed among these peoples, which they called
the shrine of Tanfana, were levelled to the ground.' Here apply
the lines of Virgil :
If I your altars always have revered,
Which the Trojans have profaned in war.
Pausanias has recorded that gifts to the gods are as a rule seized
by the victors 3 ; and Cicero, speaking of Publius Servilius, calls this
the law of war. ' He removed statues and ornaments ', Cicero says,
' from the city of the enemy which had been taken by force and
valour, in accordance with the law of war and the right of a com-
mander.' Thus Livy says that the adornments of the temple, which
Marcellus brought to Rome from Syracuse, ' were acquired by the
law of war '. Gaius Flaminius, in speaking for Marcus Fulvius, says :
1 Statues were carried off and other things done which are usually
done when cities are captured.' Fulvius 4 also in a speech calls this
very thing the law of war. Cato [Caesar] in a speech reported by
Sallust, in recalling what usually happens to the vanquished, mentions
likewise the pillaging of shrines.5
4. Nevertheless this is true, that if a divinity is believed to
1 In the Excerpta, IV. iv.
* Servius, On the Aeneid, II [II. 713], says of the temple of Ceres : * Aeneas knew that it had
previously been profaned.' He says the same On the Aeneid, III, IX, and XII. Moreover, On the
Edogues, VII | VII. 31], he remarks : ' Gifts offered to deities are sacred, and may be called offerings,
only so long as they have not been profaned.'
* Virgil, Aeneid, V [line 360] :
By Greeks ta'en down from Neptune's sacred door.
Plutarch, in his Fabius [xxii = p. 187 c, d], relates that he captured a statue of Hercules at Tarentum
and sent it to the Capitol ; he left to the Tarentines the rest of their gods, because they were hostile.
In harmony with this is the quotation we have just made from Tertullian. and also the following trmn
the same author, Against the Nations, II [II. xvii] : ' Hencc M manv iriuinphs over gods as over
peoples. Still remaininp unong them are their captive idols. and if these perceive their conquerors
they d
4 See Polybius. Selections on Embassies, xxvii [ = Histories, XXI. xxx].
* Set ! k XVI I [p. 402]. With regard to the property of the Church at Antioch captured
by Chosroes, see Procopius, Persian War, II [II. ix].
Chap. V]
On Devastation and Pillage
661
reside in an image it is unlawful that the image shall be defiled or
destroyed by those who share such belief. On the assumption that
such a belief is held, those who have committed acts of this character
are sometimes accused of impiety or of contravention of the law of
nations. The case is difTerent if the enemy do not hold the same
view ; so the Jews were not only permitted but even enjoined to
destroy the idols of the Gentiles.
The reason why the Jews were forbidden to take the idols of
their enemies was, that they might the more abominate the super-
stitions of the Gentiles, having been warned against contamination
by the very prohibition of contact. The purpose was not to spare
what was sacred to others, as Josephus * explains, doubtless from
flattery to the Romans, just as in his explanation of the other com-
mand, about not naming the gods of the Gentiles ; for he explains
this as though the Jews were forbidden to speak evil of the gods of
the Gentiles, when in fact the law would not permit them to be
named for the sake of honouring them, or without execration. The
Jews in fact knew, through the most certain admonition of God,
that in these idols there dwelt, not the spirit of God, nor good
angels, nor the power of the stars, as the misguided Gentiles thought,
but base demons, hostile to the human race. As Tacitus rightly said
in describing the institutions of the Jews : ' In their view all things
are profane which among us are sacred.' Hence it is not strange
if we read that the Maccabees more than once set fire to temples
of a profane cult.
When, therefore, Xerxes destroyed the images belonging to the
Greeks, he did nothing contrary to the law of nations, although
Greek writers exaggerate this greatly in order to arouse enmity.
For the Persians did not believe that there were any divinities in
idols,2 but thought that God was the sun, and any fire was a part
of him. By the Hebraic law, as Tacitus also rightly says : ' None
but the priests were permitted to cross the threshold of the Temple.'
5. Nevertheless Pompey, according to the same author, • entered
the Temple by right of conquest ' ; or, as Augustine, referring to the
same incident, says, ' not with the devotion [470] of a suppliant,
but by the right of a conqueror '. He did well to spare the Temple
and its furnishings, although, as Cicero expressly says, he did so from
shame and fear of his critics, not from respect ; but he. did wrong
to enter, seeing that he despised the true God, an attitude which
the Prophets censured in the Chaldaeans also. For this reason some
persons even believe that the wonderful providence of God caused
Histories,
V[iv].
Asconius
Pedianus,
On
[Cicero's]
A gainst
Verres, III
[I. xviii.
48].
[Histories,
V. viii, ix.]
City of
God,
XVIII.
xlv.
For
Flaccus
[xxviii.
68].
Daniel,
v. 23.
1 Josephus, Antiquilies of the Jews, IV. viii [IV. viii. 10], and Against Apion, II [II. xxxiii. 237].
2 Diogenes Laertius at the beginning [procem., vi] says : ' Idols are condemned by the magi.'
662 On the Law of War and Peace [Bocklll
the Pompey whom I mentioned to be slain as it were in the sight
oi Judaea, at Cassius, a promontory of Egypt.
Still, if you consider the point of view of the Romans, nothing
in relation to the Temple in Jerusalem was done contrary to the law
jeuHsh of nations. Thus Josephus relates that the Temple was destroyed by
xxZ' and Titus, and adds that it was destroyed ■ in accordance with the law
of war '.
iv. § 3 and
III. — Enemy property that is consecrated may be destroyed or pillaged ;
a caution is added
What we have said of sacred things should be understood of
consecrated things as well ; for these, also, do not belong to the
dead but to the living, being the possession of a people or of a family.
[Dig. xi. Therefore Pomponius in the passage cited above wrote that, just as
sacred places, so consecrated places ceased, when taken by enemies,
Digest, to be such ; and Paul the jurist said : ' The burial-places of the
enemy are not consecrated for us, and so we can use for any purpose
stones that have been removed from them.'
Nevertheless the principle laid down must be so interpreted
that the bodies of the dead are not to be mistreated, because that
is contrary to the law of burials ; and the law of burials, as we have
[ii. xix. shown elsewhere, was introduced by the law of nations.
1. 1.]
IV. — How far deceit is permissible in these matters
At this point I shall briefly repeat, that enemy property may
be seized not alone by force, but that ruses which do not involve
breach of faith are held to be permissible ; permissible, again, is
even the inciting of another to treachery. In truth the law of
nations begins to wink at these frequent minor wrongs, just as
municipal laws at harlotry and usury.
CHAPTER VI
ON THE RIGHT OF ACQUIRING THINGS TAKEN IN WAR
I. — What the law of nature is regarding the acquisition of things taken
in war
[472] 1. Besides the impunity among men in relation to
certain actions, which we have discussed up to this point, there is
also another effect characteristic of public war according to the law
of nations.
According to the law of nature, by a lawful war we acquire
things which are either equal to that which, although it was owed
to us, we could not otherwise obtain,1 or we inflict upon the guilty
a loss that does not exceed an equitable measure of punishment,2
as has been said elsewhere. By this law Abraham gave to God
a tithe 3 of the spoils which he had taken from the five kings, as the
inspired writer of the Epistle to the Hebrews (vii. 4) explains the story
which is found in Genesis, xiv. In like manner the Greeks also, the
Carthaginians, and the Romans consecrated to their gods, such as
Apollo, Hercules, and Jupiter Feretrius, a tenth of their booty.
Jacob, too, in leaving to Joseph a special legacy in preference
to his brothers, said : ' I give thee a portion above thy brethren,
which I took out of the hand of the Amorite with my sword and
with my bow ' (Genesis, xlviii. 22). In this passage the words
' I took ' 4 apparently are to be understood, in the prophetic manner
of speech, as ' I shall assuredly take ', and there is attributed to
Jacob that which his descendants called by his name were to do, as
if the persons of the progenitor and his children were the same.
It is in fact more correct to take the meaning thus than to refer
these words, as the Jews do, to the pillaging of Shechem, which had
already been accomplished by the sons of Jacob ; for Jacob, as
became his uprightness, always condemned this act as having been
associated with treachery, as one may see in Genesis, xxxiv. 30, and
xlix. 6.
2. Moreover it is clear from other passages also that God
approves of this right of spoil within the natural limits which I have
mentioned. In His own law, when speaking of the city that has
1 II. vii. 2. 2 II. XX [II. XX. 28 ff.].
3 And victuals to his servants, and a part of the spoil to his allies. See Josephus on this story
[Antiquities of the Jews, I. x. 2], and what follows below, III. xvi. 3.
4 The Chaldaean commentator interprets this as accomplished through prayers to God, who by
a certain exceptional benevolence had preserved Shechem for Jacob and his posteritv.
663
664
On the Law of War and Peace
[Book III
Deut., xx.
IX.
I Chron.,
V. 20, 21,
2 Chron.
xiv. 13.
Joshua,
xxii. 8.
[i Samuel,
xxx. 26.]
On
Benefits,
III. xxxvii
-III.
xxxiii].
On Curses
[q.
been stoned after the rejection of peace, God speaks thus : ' Even
all the spoil thereof thou shalt take for a prey unto thyself : and
thou shalt eat the spoil of thine enemies, which Jehovah thy God
hath given thee.' The men of the tribe of Reuben, of Gad, and part
of the tribe of Manasseh are said to have conquered the Ituraeans
and their neighbours, and to have taken much spoil from them ; and
the reason is given, that they had called upon God in the war, and
He had listened to them with favour. It is likewise recorded that
the pious king Asa, after calling upon God, won both a victory and
spoil from the Ethiopians, who were harassing him in an unjust war.
The result is all the more noteworthy, because in these cases force
was resorted to, not by a special warrant, but by a right common
to all.
3. Joshua, again, when following with his blessing the very
men of the tribes of Reuben, Gad, and a part of the tribe of Manasseh,
whom I have mentioned, said : ' Divide the spoil of your enemies
with your brethren.' And David, when he sent to the Jewish elders
spoils won from the Amalekites, gave value to the gift in saying :
1 Behold, a present for you of the spoil of the enemies of Jehovah.'
In fact, as Seneca said, for soldiers it is perfectly fair to enrich
some one with spoils taken from the enemy. Divine laws also
regarding the division of booty are to be found in Numbers, xxxi. 27.
Philo says that it is among the curses of the law that the land should
be harvested by the enemy, whence follows ' famine for friends, but
abundance for the foe '.
Xenophon,
On the
Training
of C\>
V VII. v.
ii = 626 b].
Sophtst
[ = 2I9ff.].
Comm. IV
[Memora-
bilia, IV.
U. 15].
II. — What the law of nations is ; evidences are cited
1. By the law of nations not merely he who wages war for
a just cause, but in a public war also any one at all becomes owner,
without limit or restriction, [473] of what he has taken from the
enemy. That is true in this sense, at any rate, that both the possessor
of such booty, and those who hold their title from him, are to be
protected in their possession by all nations ; and such a condition
one may call ownership so far as its external efTects are concerned.
In Xenophon Cyrus says : ' It is an eternal law among men
that, whenever a city of the enemy is taken, their property and
money belong to the captors.' Plato said : ' All goods of the con-
quered become the property of the conqueror.' Elsewhere, among
the quasi-natural modes of acquisition, he places that ' by warfare ',
which he also calls ' by pillage ', * by combat ', and * by strength of
hand '. In this matter Plato has the approval of Xenophon, whom
I have mentioned. In Xenophon's work Socrates, by means of
questions, lcads Euthydemus to the admission that it is not always
Chap. VI] On the Right of Acquiring Things taken in War 665
unjust to plunder, as when plundering is done to the detriment of
an enemy.
2. On the authority of Aristotle also we read : ' The law is
a sort of agreement, according to which things taken in war belong
to those who take them.' Of the same purport is the saying of
Antiphanes [Antisthenes] : ' One ought to pray that the enemy have
possessions without courage ; for in that case their possessions become
the property, not of those who have them, but of those who seize
them.' In Plutarch's Life of Alexander1 we read : ' The possessions
of the vanquished should be, and should be called, those of the victor.'
The same author elsewhere says : ' The goods of those who are
conquered in battles lie as prizes for those who conquer.' The
passage is taken from the second book of Xenophon, On the Training
of Cyrus. King Philip in his Letter to the Athenians said : ' All these
cities we hold either because they were left to us by our ancestors
or because we have obtained possession of them by war.' Aeschines
says : ' If indeed, after making war upon us, you took the city by
force of arms, you are in rightful possession of it, since you have it
by the law of war.'
3. In Livy Marcellus says that what he took from the Syracusans
he took by the law of war.2 The Roman envoys said to Philip with
regard to the cities of Thrace and other cities that, if he had taken
them in war, by the law of war he would hold them as the reward
of victory ; and Masinissa declared that he held by the law of nations
the territory that his father had taken in war from the Carthaginians.
Likewise, in Justin, Mithridates said : ' He had not withdrawn his
son from Cappadocia, of which, as victor, he had taken possession
by the law of nations.'
Cicero states that Mitylene had come into the possession of the
Roman people ' by the law of war and the right of victory '. He says
also that some things began to be private property either by taking
possession of that which was without an owner, or by war ; that is,
in the latter case things became the property of those who obtained
them by victory. Dio Cassius affirms : ' The possessions of the
conquered fall to the victors.' Even Clement of Alexandria says that
the property of enemies may be carried off and acquired by the
law of war.
4. ' What is taken from the enemy, by the law of nations
becomes at once the property of those who take it,' says Gaius the
Politics,
[vi].
[II. iii. 2.]
[Demo-
sthenes,
Orations,
xii. 22 =:
P- 164-]
Onthe
Badly
Conducted
Embassy
[xxxiii].
[XXVI.
Dig. XLI.
i.5. §7-
1 In the same work [xxxii=p. 684 a] : ' Conquerors acquire also for themselves the things which
belong to their enemies.'
2 [487] Diodorus Siculus, Excerpta Peiresciana, no. 467 [Excerpta de Virtutibus ei Viliis, i= p. 323],
says : ' What is acquired by arms and won by the law of war is not to be given up.' In Agathias,
Book II [I. v], the Goths said of Theodoric, after he had conquered Odoacer: ' He held by the law of
war all that had belonged to Odoacer.'
666
On the Law of War and Peace
[Book III
Institutes,
H.i[i7].
Aristotle,
Politics,
I. viii.
Dig. XLI.
ii. i. §i.
Greek
Historv,
III Hel-
lenica, III.
i. 26ff.l.
jurist. Theophilus, in the Greek Institutes, calls this a ' natural
acquisition ', in the sense in which Aristotle said ' acquisition by war
is a method according to nature '. The reason doubtless is that the
bare fact, not the cause, is held in view, and in the fact the right
has its origin.
With precisely similar meaning Nerva the Son, as the jurist Paul
relates, used to say that the ownership of things arose from natural
possession, and that a trace of this remains in relation to those things
which are taken on land, in the sea, or in the air ; likewise in respect
to the things taken in war, all of which become at once the property
of those who were the first to take possession of them.
5. Furthermore, what is taken from the subjects of an enemy
is also considered as taken from the enemy. Thus Dercyllides argues
in Xenophon, [474] that since Pharnabazus was an enemy of the
Lacedaemonians, and Mania was a subject of Pharnabazus, the
property of Mania stood in such a relation that it could rightfully
be seized, according to the law of war.
Dig. XLI.
i. 44-
Di°est,
XI. IX. xv.
iQ-§3I30.
Di^est,
XI. IX. xv.
5- §1;
Institutes,
H i. 5 17.
XLIX.xv.
5. |i.]
Institutes,
loc. cit. ;
\LI.
1.3. |7.
III. — When a thing capable of being moved may be held to have been
caftured, according to the law oj nations
1. In this inquiry in regard to war, however, the nations have
agreed that he is to be understood as having captured a thing who
retains it in such a way that the original possessor has lost probable
expectation of regaining it, or so that the thing has escaped pursuit,
as Pomponius says in a similar inquiry. In the case of things that
are movable, this principle is so extended that such things are said
to have been captured when they have been brought within the
borders, that is to say, the defences, of the enemy.
A thing in fact is lost in the same manner by which it returns,
by postliminy ; it returns when it begins to be within the borders
of the state, and that is elsewhere explained as within the defences.
Paul says clearly, with regard to a man, that he is lost when he has
gone outside of our frontiers ; and Pomponius explains that a captive
in war is he whom the enemy have taken from among our men and
brought within their own defences. Such a man, before he is brought
within the defences of the enemy, remains a citizen.
2. Now as regards this aspect of the law of nations, the same
reasoning was applied to a man and to a thing. Whence it is easy
to understand that the statement elsewhere made, that captured
things immediately become the property of those who capture them,
should be understood as implying the condition that possession con-
tinue up to this point.
:ice it secms to follow that on the sea ships and other things
Chap. VI] On the Right of Acquiring Things taken in War 667
may be considered as captured only when they have been brought
into dockyards or harbours, or to the place where a whole fleet is
stationed ; for then recovery begins to appear hopeless. But in the
more recent law of nations we see the doctrine introduced among
European peoples that such things may be considered as captured
when they have been for twenty-four hours * in the power of the
enemy.
IV. — When territory may be held to have been capured, according to
the law of nations
1. Nevertheless territory is not considered as captured at the
moment it is occupied. While it is true that that part of a territory
which an army has invaded in great force is temporarily possessed
by it, as Celsus has noted, still such possession is not sufficient for
that eflect which we are discussing, for which secure possession is
required. The Romans were so far from considering as lost the land
outside the gate which Hannibal was occupying with his c.amp, that
at that very time it sold at a price no lower than before. Therefore
only that territory will be regarded as captured which is so sur-
rounded by permanent fortifications that the other party will have
no access to it openly unless these have first been taken.
2. The origin of the word ' territory ' as given by Siculus
Flaccus from ' terrifying the enemy ' (terrendis hostibus) seems not
less probable than that of Varro from the word for ploughing (terendo),
or of Frontinus from the word for land (terra),2 or of Pomponius the
jurist from ' the right of terrifying ' (terrendi iure), which is enjoyed
by the magistrates. So Xenophon, in his book On Taxes, says that
the possession of territory in time of war is retained by means of
fortifications, which he calls ' walls and entrenchments '.
Consolato
del Mare,
cclxxxiii.
and
cclxxxvii ;
Constitu-
tions of
France,
XX. xiii.
24.
Cornelius
a Lapide,
On Gene-
sis, xiv ;
Molina,
disp. 118.
Dig. XLI.
ii. 18.
Livy,
XXVI
[xi.6].
[p. 3, edit.
Goes.]
[On the
Latin
Language,
V. xxi.]
[Dig. L.
xvi. 239,
§8.]
[IV. xliii
*.]
V. — Property which does not belong to the enemy is not acquired by war
This also is clear : In order that something may become ours
by the law of war, it must belong to the enemy. Those things which
are in the enemy's possession, to be sure, in their towns, for example,
or within their fortifications, but of which the owners are neither
subjects of the enemy nor hostilely inclined, cannot be acquired by
war. It has been shown, among other things, in a passage of Aeschines
1 That this custom is observed on land also may be learned from De Thou, Book CXIII, on the
year 1595. The rule is derived from the Germanic laws, and follows the precedent which these
people, not without reason, had cstablished for themselves in regard to a wounded wild animal, as in
the Law of the Lombards, I. xxii. 6. Alberico Gentili, Hispanica Advocatio, I. iii, says that the same
rule is observed in England and in the kingdom of Castile.
2 [Grotius seems to have misread a passage of Godefroy's note on Digest, L. xvi. 239, which states
that Frontinus derived it from terrendis hostibus, Cujas from terra.]
[On the
Badly
Conducted
Embassy,
xxxiii.]
668 On the Law of War and Peace [Booklll
previously cited, that Amphipolis, which was a city of the Athenians,
could not have become the property of Philip as a result of Philip's
war against the citizens of Amphipolis. For this would be unreason-
able, and the right of changing ownership by means of force is too
orTensive to merit wider application.
VI. — JVhat of goods found in ships of the enemy ?
Consequently the current statement that goods, which are found
in ships of the enemy, are to be considered as belonging to the
enemy,1 should not be accepted as if it were a fixed provision of the
Consoiato law of nations, [475] but as indicating a certain presumption.
tdxxS? This presumption, however, may be overthrown by valid proofs to
the contrary.
In our native country of Holland formerly, in the year 1438,
when war was raging with the Hanseatic towns, a decision to that
efTect was reached at a full session of the Senate, as I have found, and
from that decision the provision passed into a law.
VII. — Things which our enemies have taken from others by war become
ours according to the law of nations ; this is attested by evidence
1. The principle, however, is beyond dispute — if we have
reference to the law of nations — that what has been taken by us
from the enemy cannot be claimed by those who had possessed it
before it came into the possession of our enemy, and had lost it in
war. The reason is that the law of nations, through external owner-
ship, first made our enemy the owner, and then us.
Judges, xi. By this right, among others, Jephtha defends himself against the
Ammonites, because that territory, which the Ammonites claimed,
had by the law of war passed from the Ammonites ; just so another
part also had passed from the Moabites to the Amorites, and from
1 sam., the Amorites to the Jews. Likewise David 2 regarded as his own,
1 But the ships of friends do not become prizes because they are carrying goods of the enemy,
unless this happens with the consent of the owners of the ship, Digest, XXXIX. iv. n ; Rodericus
Suarez, De Usu Maris, consilium ii, no. 6.
In this sense I think we must interpret the laws of France, which render vessels liable to seizure
because of their goods, and goods because of the ships which carry them. Such are the laws of Francis I
issued in 1543, chap. xlii ; of Henry III, issued in March, 1584, chap. lxix ; and the Portuguese Law,
Book I, tit. xviii.
-•where the goods themselves are alone liable to seizure ; Meurs, Danish History, II. Thus
in the war between the Venetians and the Genoese Greek ships were searched and any enemies who
were concealed in them were removed ; Gregoras, IX [IX. v]. See also Krantz, Saxonica, II, and
Alberico Gentili, Hispanica Advocatio, I. xx
* And so Rezin, king of Syria, gave the city Eloth, which had belonged to the Idumaeans, not to
the Idumaeans but to the Syrians, for them to dwcll there, according to the reading of the Masorites,
2 Kings, xvi. 6.
Chap. VI] On the Right of Acquiring Things taken in War 669
and distributed, what he himself had taken from the Amalekites, and
the Amalekites had taken from the Philistines.
2. According to Dionysius of Halicarnassus, when the Volscians *
demanded their former possessions, Titus Largius in the Roman
Senate expressed his opinion thus :
We Romans consider as our fairest and most lawful possessions those which we have
taken and hold by the law of war ; and we would not foolishly sufTer valour to be for-
gotten by surrendering these possessions to those who have lost them. Such possessions
we think are not only to be shared in by our citizens who are living, but are also to be
left for posterity. If we allow ourselves to be deprived of what we now have, we shall
injure ourselves in the same manner in which we injured the enemy.
Similar was the answer given by the Romans to the Aurunci :
* We Romans think that with perfect right one may hand down, as
his own, to his descendants, whatever he has acquired by courageously
wresting it from the enemy.' Elsewhere, in reply to the Volscians,
the Romans speak as follows :
But we consider as our best possessions those which we have taken by conquest in
war. We were not the first to establish this right, nor do we think that it is a law of
men rather than of the gods ; but we know that all, both Greeks and barbarians, make
use of it, and we would not yield to you anything in cowardice, nor abandon what we
have won in war. For it would be the utmost disgrace if any one through cowardice
and folly should be deprived of what had been won by courage and bravery.
[Roman
A ntiqui-
ties,] VI
[xxxvi].
[Dion.
Hal., VI.
xxxii.]
<s
mce
There is a similar thought in the reply of the Samnites :
we have acquired these things in war, which is a perfectly fair law of
acquisition.'
3. After relating that the land near Luna was divided by the
Romans, Livy speaks of it thus : ' This land had been taken from
the Ligurians ; it had belonged to the Etruscans before the Ligurians.'
By such a right Appian notes that the Romans retained Syria, and
did not restore it to Antiochus Pius, from whom Tigranes, an eriemy
of the Romans, had taken it.2 Justin, quoting from Trogus, repre-
sents Pompey as replying thus to the same Antiochus : ' Since
Pompey had not taken the kingdom from Antiochus when Antiochus
held it, inasmuch as Antiochus had yielded it to Tigranes, Pompey
1 Plutarch, Romulus [xxv= p. 33], tells the same story with regard to Veii : ' The people of Veii
began the war with the demand that Fidenae should be restored to them, just as if it belonged to them.
This was not only unjust but also ridiculous, seeing that they had not aided Fidenae when in distress
and engaged in war, but had permitted the population to perish, and now laid claim to the houses and
fields from those who held possession of these as the result of war.'
2 Appian [Syrian Wars, viii. 49] speaks as follows : ' It was not right that the Seleucidae, who
had been dispossessed by Tigranes, should occupy Syria, rather than the Romans who had conquered
Tigranes.' And elsewhere [Mithridalic Wars, xv. 106] : ' He believed that since he had driven the
conqucror of Antiochus from this land he had thereby acquired it for the Romans.' Antiochus himself,
in Polybius, Selections on Embassies, lxxii [= p. 307], ' thought that the possession acquired in war was
the surest and most honourable '.
670
On the Law of War and Peace
[Bock III
[Appian,]
Civil Wars,
29].
would not give to him what [476] he did not know how to defend.'
Likewise the Romans held as their own those parts of Gaul l which
the Cimbri had wrested from the Gauls.
Bartolus,
On Dig.,
XLIX.
-s;
Alexander
and Jason,
On Dig.,
XLI.ii.l;
Angelus,
On Inst.,
II.i.§i7;
Panormi-
tanus, On
Decretals,
II. xxiv.
13, no. 7;
Thomas
Gramma-
ticus, Deci-
siones Xea-
politanae,
lxxi, no.
17;
Martinus
Laudensis,
De Bello,
qu. 4.
[III. vi.
2.4.]
VIII. — The opinion, which holds that things taken from the enemy
hecome the property of the individuals who capture them, is refuted
It is a more serious question, Who acquires the goods of the
enemy in a public and formal war : the people itself or the individuals
who are of it or within it ?
On this point the more recent interpreters of the law hold very
diverse opinions. The majority of them, having read in the Roman
law that captured things become the property of those who take
them, but in the collection of canons that booty is divided according
to the will of the people, have declared — one following the other,
as is usually the case — that in the first place and by the law itself
things captured belong to the individuals who lay hands on them,
but that they are to be assigned to the commander for distribution
among the soldiers. Since this view is as widely current as it is false,
we must refute it with so much the greater pains, that it may serve
as an example of how little trust, in controversies of this sort, is to
be placed m such authorities.
However, it is not to be doubted that by agreement of the
nations either practice may be established ; that is, that the owner-
ship of captured goods may fall to the people which wages the war,
or to any one who lays hands upon them. But we are inquiring what
their will has been ; and we say that the nations have decided that
the property of enemies should stand to enemies in the same relation
as ownerless property, as we have already indicated from the saying
of Nerva the Son.
IX. — By the law of nature hoth possession and ownership may be acquired
through another
1 . Things which are ownerless, to be sure, become the property
of those who take them, but they become just as much the property
of those who obtain possession of them through others as of those
who take them for themselves. Consequently not only slaves and
children, but also free men, who in fishing, fowling, hunting, or
gathering pearls, have given their assistance to others, at once acquire
1 The Franks did not restore to the Romans the lands of Italy whirh they htd Kcdved from the
- opius, Gothic War, IV [IV. xxiv]. See what the king of Sweden says, in Dc Thou, Book
LXXVI, on ihe veur 1582.
Chap. VI] On the Right of Acquiring Things taken in War 671
what they have taken for those persons whom they serve. Modestinus pig. xli.
the jurist was right in saying : c What is acquired naturally, as lo3<
a possession, we acquire through any person at all, if we wish to
possess it.'
In his collected Sententiae Paul says : ' We acquire possession by v.ii[§x].
means of the will and of the body ; by our own will, that is, but
by either our own body or that of another.' The same writer thus Dig. xli.
comments on the Edict : c We acquire possession through an agent, "• *• § 2°*
a guardian, or an executor ' ; and he explains that this happens
when they act with the intention of rendering us such service. Thus
among the Greeks, those who competed in the Olympic games
acquired prizes for those by whom they were sent. The reason is
that naturally one man by his own volition becomes the instrument
of another's will, as we have also said elsewhere. [i. v. 3.]
2. Therefore the distinction in regard to acquisitions, which Digest,
is handed down as between free and unfree persons, belongs to the va.i£n
civil law, and properly applies only to acquisitions under the civil p*g- xlv.
law, as appears from the passage cited from Modestinus. Never- ■ I7'
theless the Emperor Severus afterward made such acquisitions
approach more closely to the type of natural acquisitions, not in the
interest of utility only, as he himself claims, but in that of juris- Code, vn.
prudence also. If, then, we disregard the civil law, the principle 5™v!'
holds good that one may do through another what he can do himself, xii.68and
and that the effect is the same whether any one acts for himself or
through another.
72.
X. — The distinction between hostile acts as public or private
In our investigation, therefore, we must distinguish between acts
of war that are truly of a public character, and private acts which
are committed on the occasion of a public war. By private acts
a thing is sought primarily and directly for private persons ; by
public acts, for the people.
It was, then, in accordance with the law of nations that Scipio,
as Livy relates, treated thus with Masinissa : c Syphax has been Livy,
beaten and captured under the auspices of the Roman people. In £^_I0].
consequence he himself, his wife, his kingdom, land, towns, the men
who inhabit them, in short whatever belonged to Syphax, are the
spoil of the Roman people.' In the same manner Antiochus the
Great argued that Coele Syria had been acquired by Seleucus and
not by Ptolemy, on the ground that the war was the war of Seleucus,
to whom assistance had been rendered by Ptolemy. The account is
in Polybius, Book V. [v.ixvii.]
1569.27 z z
XLIX.
XV. 20.]
672 0n the Law of War and Peace [Booklll
[4--] XI. — Territory is acquired for a people, or for him whose
war it is
1 . Landed property is not usually taken except by a public act,
upon the entry of an army and the establishment of garrisons. Thus,
[Digcst, in the opinion of Pomponius, ' Land that has been taken from the
enemy is public property ', that is, as he explains in the same passage,
1 it is not classed as booty ', if we take the word booty in its strict
sense. In Procopius,1 Solomon the praetorian prefect said : ' It is
not unreasonable that captives and other things should go to the
soldiers as booty ' — on the understanding that this is done by public
consent, as we shall explain below — ' but that the land itself should
belong to the Emperor and the Roman state.'
2. Thus among the Jews 2 and the Lacedaemonians land taken
Dig.xxi. by force was divided by lot. So the Romans either kept captured
jDfeVLU, territory in order to lease it, in some cases leaving a small portion
15- § 1. to the original possessor as a mark of honour ; or they sold it in
parcels, or assigned it to colonists, or made it subject to taxes. For
such disposition of conquered territory there is abundant evidence
in the laws and histories, and in the treatises of the land-surveyors.
[t *• 7] In the first book of his Civil Wars Appian writes : * In conquering
Italy by war, the Romans confiscated a part of the land.' In the
[ii. xix. second book he says further : ' Whenever they conquered an enemy,
they did not take away all his land, but seized a part of it.' Cicero,
[xiix. 128.] in his speech For [On] his House addressed to the pontiffs, notes
that territory taken from the enemy was in some cases consecrated
by the victorious commander, but at the command of the people.
XII. — Movables, or things capable of motion, when captured by a private
act, become the property of the individuals who take them
1. But things which are movable, or are themselves capable of
motion, if captured are taken either in the public service or outside
of it. If they are taken outside of the public service, they become
the property of the individuals who take them. To this principle
pig. xli. should be referred the statement of Celsus : * Goods of the enemy
which are in our midst are not public property but belong to those who
have seized them.' By the words * which are in our midst ' we are
to understand ' which are found in our midst after war has begun '.
1 Vatiiiuli, War, II [II. xiv]. See also what follows there. Even Severua gimnted lo 1 lu- ^enerals
thf irontiers laads taken from the enemy, [488] M LampridtOS notei [AlextmtUr
Severus, lviii]. In the Swiss constitution it is provided that towns and fortrettes thml have been cap-
tured fall to the cantons in common, according to man t Simler.
* Among the same people the king mertl ai tnuch oi the captured territory as each
tribe ; this is indicated in the Digest ofthe Talitmd, titlr On ihe King.
Chap. VI] On the Right of Acquiring Things taken in War 673
The same practice was observed with regard to men also, at the
time when, in respect to the principle stated, captive men were
classed with captured property. On this point a passage of Trypho-
ninus is noteworthy : ' But those who, in time of peace, have arrived
among other peoples, if war suddenly breaks out, become the slaves
of those among whom, now their enemies, it is their fate to be
caught ' ; for we must here read ' fate ', and not ' act ' or 6 agree-
ment ' as the texts have it. This result is ascribed by the jurist to
fate because they fall into slavery through no desert of their own.1
To attribute such things to fate is common. An example is the line
of Naevius : ' At Rome by fate the Metelli are made consuls,' that
is, without merit of their own.
2. From the same principle it follows that if soldiers capture
anything when they are not in formation or engaged in executing
an order, but when they are acting under a general right or by mere
permission, this they at once acquire for themselves ; for they do
not make the capture in the capacity of servants. Such are the
spoils which are torn from an enemy in single combat ; such also
are spoils seized by soldiers in free and unauthorized raids at a distance
from the army — beyond ten miles the Romans used to say, as we
shall see shortly. This sort of booty the Italians at the present day
call ' raid-spoil ' (correria), and distinguish from ' sack ' (bottino).
XIII. — Movables, or things capable ofmotion, zuhen captured by a private
act, do not become the property of individuals if the municipal law
determines otherwise
But our statement, that by the law of nations things movable
or capable of motion are directly acquired by individuals, must be
understood as applicable to the law of nations as unmodified by any
municipal law covering the matter. Each people may in fact establish
other rules valid over its citizens, and may thus forestall individual
ownership ; as we see is done in many places with regard to wild
animals and birds. In like manner it may also be provided by a law
that goods of enemies which are discovered in our midst should
become public property.
XIV. — Things captured by a public act become the property of the
people or of him whose war it is
1. With regard to those things, however, which are captured
by an act of war, the situation is different. In this case [478]
Digest,
XLIX.xv.
12.
[Asconius
Pedianus,
On Ciccroyi
Against
Verres, II.
i. 29.]
Saliceto,
On Code,
VIII. 1. 2
Thomas
Gramma-
ticus, De-
cisiones
Neapolita-
nae, Ixxi,
no. 18.
1 So Servius, On the Aeneid, I [I. 32], ' Driven on by fate ', also contrasts these two ideas
seeks to ascribe nothing to the deserts of the Trojans, but everything to the fates.'
Z Z 2
Virgil
674
On the Law of War and Peace
[Book III
[Iliad,
125.]
[lliad, IX.
330 ff.]
[Iliad, I.
163 *•)
[Iliad, IX.
279 ff-1
^«wii, II
[762 «.].
Plutarch,
Aristides
[v = p.
321 D].
Herodotus,
IX [lxxx
ff].
Plutarch,
Lysandet
[xvi = p.
individuals represent the person of the state, and act in its stead ;
hence through them, unless a statute otherwise decrees, the people
obtains both possession and ownership, and transfers this to whom-
ever it wishes. Because this view is in direct conflict with common
opinion, I feel that I must cite proofs more fully than usual from
the examples of outstanding peoples.
2. I shall begin with the Greeks, whose practice Homer describes
in more than one passage :
But the spoil which we took from the cities now has been divided.
In the same poet Achilles, speaking of the cities which he had
stormed, says :
From all of these much rich spoil did I ravish,
And all I brought and gave to Atreus' son ;
But he by the swift ships remained behind,
And, taking it, shared some with others, but kept much.
Here Agamemnon is to be regarded, on the one hand, as at that
time ruler of all Greece, and so taking the place of the people, and
by that right dividing the booty, with the approval of his council ;
and on the other as filling the post of general, hence obtaining
a greater share than the rest from the common store. The same
Achilles addresses Agamemnon himself as follows :
Never have I with you of spoil an equal share,
When Grecian valour has o'erthrown a Trojan town.
Elsewhere Agamemnon oflers to Achilles, by public agreement, a ship
full of bronze and gold, and twenty women, to fall to his lot from
the spoil. Upon the capture of Troy, as Virgil narrates :
Phoenix and hard Ulysses chosen guards
Watched o'er the booty : hither from all sides
The spoil of Troy snatched from the blazing shrines,
With tables of the gods and mixing bowls
Heavy with gold, and captured raiment, high
Is heaped.
In like manner at a later time Aristides guarded the booty from
Marathon. After the battle at Plataea it was strictly forbidden that
any one should remove anything from the spoil on his own authority ;
later the spoil was distributed on the basis of the deserts of the
several peoples. When Athens afterward was conquered, the booty
was transferred by Lysander to the public treasure. Among the
Spartans x the name of a public ofBce is ' sellers of booty '.
1 While Agesilaus was operating in Asia, Spithridates had abstracted booty from the camp of
1'harnabazus, which had been captured ; but when an inquiry was set on foot by the Lacedaemonian
ides he took flight [Plutarch, Agesilaus, xi=p. 601 f\.
Chap. VI] On the Right of Acquiring Things taken in War 675
3. If we come to Asia, the Trojans, as Virgil teaches us, were
accustomed ' to draw lots for booty ', as is usually done in dividing
things held in common. At other times the decision to divide booty
rests with the commander ; and by this right Hector, upon the
express stipulation of Dolon, promises him the horses of Achilles, so
that you may perceive that the right of acquiring ownership was
not in the mere act of seizure.
Spoil was brought to Cyrus, the conqueror of Asia ; and like-
wise, at a later date, to Alexander. If we look to Africa, the same
custom is found. Thus what was captured at Agrigentum, [479]
and in the battle of Cannae, and elsewhere, was sent to Carthage.
Among the ancient Franks, as we see from the History by Gregory
of Tours, things which had been captured were divided by lot * ;
and the king himself had nothing else from the spoil than what the
lot assigned to him.
4. But the Romans are more worthy of our consideration in
respect to their examples in a degree commensurate with their
superiority to the other nations in the art of war. Dionysius of
Halicarnassus, a most careful observer of Roman customs, informs
us on this point as follows : ' The law ordains that whatever has
been captured from the enemy in battle becomes public property,
in such a way that not only no private person may become owner
of it, but not even the commander of the army himself. The
quaestor takes possession of the things captured and auctions them
orT, and deposits the money in the public treasury.' These are the
words of those who accuse Coriolanus, and they are to some extent
framed to arouse ill-will towards him.
XV. — Nevertheless in such things some right of decision is usually
granted to commanders
While it was true that the people were the owners of the spoil,2
it was not less true that, in the time of the free republic, the com-
manders were entrusted with the decision in regard to its disposal.3
In Livy, Lucius Aemilius says : ' Cities that have been captured,
not surrendered, are sacked, and nevertheless the decision in regard
to them belongs to the commander, not to the soldiers.'
1 This you find in Gregory of Tours, II. xxvii ; in Aimoin, I. xii, and in the Epitome, edited by
Freher, chap. ix. The same custom is an old one among other peoples also. Servius, On the Aeneid, III
[III. 323], She did not endure any casting of lots ', says : ' Because captives and spoil were divided
by lot among the victors ; as : " to draw a lot for spoil ".'
With respect to the collecting of the spoil for the common use, and the justification by oath among
the Swedes and Goths, see Johan Magnus, XI. xi [Barbeyrac believes this a misquotation].
f See also on this point Simler, in the Helvetica.
% Polybius, in the Excerpta Peiresciana [p. 1454], says of Lucius Aemilius Paulus : ' Although
he had become master of the entire kingdom, and could dispose of everything at his pleasure, he sought
nothing for himself.'
676
On the Law of War and Peace
[Book III
Livv,
V [xxii.
ij.
This right of decision, which custom vested in the generals, they
themselves at times referred to the Senate, as Camillus did, in order
that thev might be the more free from all suspicion. The com-
manders who retained the right are found to have made varied use
of it, according as they were influenced by scrupulousness, regard
for their reputation, and ambition.
XIII. xxiii
[XIII.
'IV. liii.
10.]
II
[xxxvii].
Letters, II.
xvii. 4].
[The Two
Bacchises,
1075]
[Captives,
iii.]
XVI. — Commanders may turn booty over to the public treasury
1. Generals who wished to be, or wished to be believed to be,
most scrupulous, did not touch the booty at all.1 If there was money
in the booty, they ordered that it should be taken over by the
quaestor of the Roman people ; if there were other things, they
ordered that these be auctioned off by the quaestor ; and Favorinus,
in Gellius, thinks that the money procured by such means was called
1 proceeds of spoils ' (manubiae). Such money was placed by the
quaestor in the treasury, after having been flrst publicly exhibited
if the victory had warranted a triumph.
In the fourth book of Livy it is said of the consul Gaius Valerius :
1 There was considerable booty from the constant raids, because all
the loot had been brought together in a safe place. The consul
ordered the quaestors to sell this booty at auction, and deposit the
proceeds in the treasury.' The same thing was done by Pompey,
with regard to whom the words of Velleius are : * The treasure of
Tigranes, in accordance with Pompey's usual practice,2 was placed
in the hands of the quaestor and entered in the public accounts.'
Marcus Cicero pursued the same course, and in his letters to Sallust
he writes thus of himself : ' Of the spoil I have taken, no one except
the city quaestors, that is, the Roman people, has touched or will
touch a quarter of a penny.' This was the practice especially in the
ancient and better days, and Plautus has this in mind when he
speaks thus :
Now all this booty to the quaestor I shall take.
In like manner, of captives he says :
Whom I bought from the quaestors, out of the spoil.
2. But others sold the booty themselves, without the aid of the
1 ' Manius Curius swore that he had touched nothing from the booty except a vessel of beechwood
with which to offer sacrifice ' [Pliny, Natural History, XVI. xxxviii]. The author of the De Vins
Jllustrtbus [Aurelius Victor], in speaking of Mummius [chap. clx], says : ' He robbed Corinth of Btfttua
and paintings, but, although he filled all Italy with them, he collected nothing in his own house.'
Of the Aemilius Paulus just referred to, Plutarch [Aetnilius Paulus, xxviii =p. 270 d] says : ' Htfl
bcstowcd no less praise upon his generosity and his magnanimity, because he did m>t wi>h cven to
inspect the great quantity of gold and silver collected from the king's treasures, but gave it to the
the public treasury.'
* As on many occasions. See what is cited from Lucan in the following paragraph [III. vi. 17. 4].
Chap. VI] On the Right of Acqniring Things taken in War 677
quaestor, and deposited the proceeds in the treasury, as we may gather
from Dionysius of Halicarnassus in the words which follow [in the
passage just cited]. Thus we read that in early times, after the defeat of
the Sabines, the spoil and the captives were sent to Rome by King
Tarquin. Thus, again, it is related that the consuls Romulius and
Veturius sold the booty because of the poverty of the treasury, although
the army was annoyed thereat.
Since in fact we frequently find statements showing how much
each of the generals deposited in the treasury either through himself
or through his quaestor, from Italian, African, Asiatic, Gallic, and
Spanish triumphs, [480] there is no need to accumulate examples.
Rather is this to be noted, that the booty, or part of it, was given at
times to the gods, at times to the soldiers, and at times to others.
To the gods either the articles themselves were given, such as the
spoils which Romulus hung in the temple of Jupiter Feretrius, or
the money derived from them, as when from the proceeds of the booty
from Pometia [Tarquinius] Superbus built the temple of Jupiter on
the Tarpeian mount.
XVII. — Or commanders may divide the booty among the soldiers ; in
what way such a division may be made
1. The early Romans regarded the granting of the spoil to the
soldiers as a form of bribery. Thus Sextus, the son of Tarquinius
Superbus, but an exile at Gabii, is said to have given booty to his
soldiery with the object of securing power for himself in this way.
In the Senate Appius Claudius attacked a largess of similar character
as being new, prodigal, and ill-considered.
The booty granted to the soldiery is either divided or left for
pillage. It may be divided on the basis of pay or of merit.1 Appius
Claudius desired that the booty be divided on the basis of pay, in
case he should be unable to secure the transfer of the money derived
from its sale to the treasury. Polybius carefully explains the whole
system of distribution. For full days, or for watch periods, a half of
the army, or a smaller portion, was regularly sent to collect booty.
Each man was ordered to bring into camp what he had found, that
it might be equally divided by the tribunes ; and a share was given
both to those who had guarded the camp (a practice which, we read,
was sanctioned also by King David among the Jews, and which from
that source passed into law) and to those who had been absent on
account of ill-health or assignment to details.
2. Sometimes the booty itself was not granted to the soldiers,
1 From Josephus, Antiquities of ihe Jews, Book III [III. ii. 5], we learn that this was done among
the Jews.
678
On the Law of War and Peace
[Book III
Livv
[XLV.
xl.5;
xxxiv. 5].
Suetonius,
Caesar
[Divus
Julius],
xxxviii ;
and Ap-
pian, Civil
Wars, II
[xv. 102].
Livy
[Dion.
Hal., VI.
xciv].
[33 f.]
[Trojan
Women,
274-]
[Aeneid,
IX.269f.]
[IX.
lxxxi.]
[Dion.
Hal.,] IV
EQ.
[SeUctions
on Embas-
sies,p. 18.]
but the money derived from it was given to them in place of the
bootv ; this was often done on the occasion of a triumph.
This is the proportionate distribution that I find. A single
share was given to a foot-soldier, a double share to a centurion, and
a threefold share to a cavalryman. Sometimes a single share was
allotted to a foot-soldier, and a double share to a cavalryman. Again,
a single share was given to a foot-soldier, a double share to a centurion,
and a fourfold share to a tribune and a cavalryman.1 In many cases
account was taken also of merit, as when Marcius was granted a share
from the booty of Corioli 2 by Postumius, because of his brave
conduct.
3. Without regard to the way in which the division was made,
the commander was allowed his selection 3 ; that is, he was permitted
to take for himself, as first choice, as much as he chose, in other words,
as much as he considered fair. This privilege was at times accorded
to others also on account of their vaiour.4 Euripides in his Trojan
Women, speaking of the women of Troy of high birth, says :
Outstanding women, who had been given to the chiefs
Of the Grecian host.
Of Andromache the same dramatist says :
Pyrrhus received that noble woman for himself.
In Virgil, Ascanius says of a horse :
Him, the shield, and the ruddy crest, from the lot
I shall exempt.
Herodotus relates that after the battle of Plataea, as choice
things, women, horses, and camels, were given to Pausanias. In this
way King Tullius received Ocrisia, the chief woman of Corniculum.
In Dionysius of Halicarnassus, Fabricius 5 says in an address to
Pyrrhus : ' Of these things seized in war it was lawful for me to
take as much as I chose.'
1 To a tribune and a prefect of horse, says Appian, Civil Wars, II [II. xv. 102].
* See Plutarch, Coriolanus [ix and x=p. 218 A, b].
* See Leunclavius, Turkish History.
* Thus Nestor acquired a woman —
Exempted from the lot
By the gift of the Greeks.
[489] That is in the lliad, XI [XI. 626 f.]. But in the Odyssey, XIV [XIV. 232 f.], Ulysses says :
Excellent Meneaeceus I received [Of this I'd choose what chanced to please my mind],
But after, by the lot, I much obtained.
Euripides says of Cassandra [Trojan Wotnen, line 249] :
Her the elder son of Atreus made his special prize.
On what ' was chosen' from the spoil for the Athenian general Demosthenes, that is, was given hira
by right of pre-eminence, see Thucydides, Book II [III. cxiv].
* Whom Julian set as an example for himself and his soldiers ; Ammianus, XXIV [XXIV. iii. 5].
Chap. VI] On the Right of Acquiring Things taken in War 679
With this in mind Isidore, in discussing military law, mentions
1 The disposition of the booty, the just division in proportion to the
rank [481] and services of individuals, and the portion of the prince '.
Tarquinius Superbus, as Livy has it, wished both to enrich himself
and to win over the affections of the people with spoil. Servilius in
his speech for Lucius Paulus says that he could have made himself
wealthy by a division of the booty. There are some writers, among
whom is Asconius Pedianus, who take the view that the term manubiae
more correctly designates this share of the commander.
4. But those commanders have won greater renown who, giving
up their right, took nothing for themselves from the booty. Such
was the Fabricius whom I have mentioned, who ' despised wealth,
even when acquired justly, in comparison with fame ' ; and this he
declared that he did after the example of Valerius Publicola and
some others.
These commanders were imitated also by Marcus Porcius Cato
in his victory over the Spaniards, when he declared that none of the
spoils of war would come into his hands, with the exception of those
things which he had consumed in food and drink ; and yet he added
that he did not blame the commanders who had made use of the
privileges conceded to them, but that he preferred to rival the best
in point of virtue rather than the richest in point of wealth. Very
nearly the same praise was merited by those who took of the spoil
in moderation, as Pompey, who is praised by Cato in Lucan :
More than he withheld
Did he contribute.
[xxxvii.
10].
[On
Cicero's]
Against
Verres, III
[I. lix.
154].
Plutarch,
Marcus
Cato [the
Elder, x =
p. 342 A].
5. Sometimes in making the distribution account was taken of
the absent also, as Fabius Ambustus decided at the capture of Auxur.
Sometimes, too, for some reason in such a distribution no account
was taken of certain persons even though they were present ; this
was the case with the army of Minucius, in the dictatorship of Cin-
cinnatus.
6. Furthermore this right, which the commanders had enjoyed
under the old republic, after the fall of the republic appears from
Justinian's Code to have passed to the masters of the soldiers ; for
under the Code there are exempted from inclusion in the reports of
military exploits the largesses of movable objects or those capable
of locomotion. These the masters of the soldiers grant to their
troops from the spoils of the enemy, whether in the actual conduct
of wars or in places in which they are known to be stationed.
7. But this kind of division in olden times was often exposed
to calumny, as though by this means leaders were seeking to win
the goodwill of individuals. On such grounds charges were brought
Livy, IV
[lix. 8].
Livy, III
[xxix. 2].
68o
On thc Law of War and Peace
[Book III
Dion.
Hal., VI
[xxx], and
VII rixiii].
Liw
[xxxii. 8].
Dionysius
of Halicar-
nassus,
Dion.
Hal., IV
. IV
[xlvii. 4].
f, V.
xxi. 14.]
Dionysius,
IV; VI
I.\;iv];
xi].
Livv,
XLVI
[XLIV.
[Livv,
XLV.
xxxiv. 1.]
Appian,
Mithrida-
tic Wars
rxii. 85].
[I. xlv.
85]
VI [V.
xx. 6].
against Servilius, Coriolanus, and Camillus, that they had granted
largesses to their friends and clients from the public funds. In reply
they defended themselves on the ground of the public advantage,
1 that those, who had shared in the undertaking, after having gathered
the fruit of their labours, might be the more ready to enter upon
other campaigns ' — if we may cite the words of Dionysius of Hali-
carnassus on this matter.
XVIII. — Or commanders may permit pillaging
1. I now come to pillaging. This was conceded to the soldiers
either in the devastation of a country, or after a battle, or after the
storming of a town, with permission to scatter at a given signal.
It was a practice rather unusual in early times, yet it did not lack
examples. Tarquin gave over Suessa to his soldiers for pillage ;
Quintus Servilius, the dictator, the camp of the Aequians ; Camillus,
the city of Veii ; the consul Servilius, the camp of the Volscians.
Also Lucius Valerius permitted pillaging in the land of the Aequians,
Quintus Fabius, after the rout of the Volscians, and after the capture
of Ecetra. Such pillaging was aftenvard permitted by others on many
occasions.
Upon the defeat of Perseus, the consul Paulus granted the spoil
of the beaten army to the infantry, and the booty of the surrounding
country to the cavalry. The same consul, in accordance with a decree
of the Senate, gave over the cities of Epirus x to the soldiers to plunder.
When Tigranes was conquered, Lucullus 2 for a considerable time
restrained his troops from collecting spoils, but later, when victory
was assured, he yielded the right to plunder the enemy. Cicero, in
his first book On Invention, among the ways of acquiring ownership,
includes the capture of anything from the enemy, when a public
sale of this booty has not taken place.3
2. Those who condemn this practice [482] say that hands
greedy for pillage ' will snatch away the rewards of brave warriors,
since it usually happens that the more slothful man takes to plunder ',4
while all the bravest ' are wont to seek the chief share of toil and
peril ' — to quote the words of Appius in Livy. Not very different
1 As Sulla did in the case of Athens ; Appian, Mithridatic Wars [vi. 38].
* Plutarch [Lucullus, xxix= p. 511 e] relates that he turned over Tigranocerta for his soldiers to
plunder, and besides gave to each man eight hundred drachmas from the spoil. Severus granted his
the plunder of Ctesiphon ; and likewise ordered the tribunes, officers, and soldiers to keep the
loot from the villages, as Aelius Spartianus records [Severus, xvi ; Aelius Lampridius, Alexander
Severus, lv].
irned II promised his soldiery the people of Constantinople with the booty and slaves.
' Y.irro [On Farming, II. x] enumerates six ways by which one may lawfully become ■ pro-
prietor : through the acquisition of a lawful inheritance, through purchase, cession, usucaption, sale of
bodty at auction, and public auction, when a penon'l propcrty is divided and sold.
* See what we shall cite from Procopius on III. vi. 24..
Chap. VI] On the Right of Acquiring Things taken in War 68 1
is the saying of Cyrus in Xenophon : ' I am well aware that in pillag-
ing the worse element would get the greater amount.'
On the opposite side it is said that what each soldier had taken
from the enemy with his own hand and had carried off home would
prove to be more acceptable and afford greater pleasure than many
times as much allotted to him by another's decision.
3. Sometimes, too, pillaging was permitted because it could not
be prevented. In the storming of Cortuosa, an Etruscan town, as
Livy relates : ' The tribunes decided to reserve the booty for the
state, but the order was slower than the decision ; for already the
spoil was in the hands of the soldiers, and could not be taken away
without causing ill-feeling.' So also we read that the camp of the
Galatians was plundered by the army of Gaius Helvius against the
will of the commander.
[Traimng
of Cyrus,
VII.il.
xi.]
Livy, V
[xx. 8].
VI [iv.
11].
XIX. — Or commanders may grant the spoil to others
The practice already mentioned, that in some cases the booty,
or money derived from the sale of booty, might be assigned to others
than the soldiers, usually had as its purpose to make an equivalent
reimbursement to those who had contributed funds for the war.
You may also note that public spectacles were at times produced
with the money derived from the booty.
nassus,
V [xlvii].
XX. — Or commanders, having divided the booty into portions, may em-
ploy now one method of distribution and now another ; in what way
1. Not only in different wars are difTerent methods employed
in the disposition of booty, but in the same war booty is often diverted
to different uses, after it has been divided into portions or the different
kinds have been distinguished.
Thus Camillus gave a tenth of the spoil to the Pythian Apollo,1
following a Greek precedent, which had previously come from the
Jews ; at this time the pontiffs decided that the dedicated tenth
included not only movable things but also the city and its territory.
When Camillus was again victor the greatest part of the spoil from
the Faliscans was assigned to the quaestor ; not so much was given
to the soldiers. In like manner Lucius Manlius ' either sold the spoil,
in so far as it had to be contributed to the public treasury, or divided
it among the soldiers, taking care that it should be as fairly divided
as possible ' ; the words are those of Livy.
2. The classes into which booty may be divided are these :
prisoners, herds, and flocks, which the Greeks when speaking with
Livy, v
[xxiii. 8].
Livy, V
[xix. 8].
1 This is also recorded by Appian in the Excerpta Peiresciana [ii= Concerning Ilaly, viii. 1].
682
On the Law of War and Peace
[Book III
Dionvsius,
VIII '
[IxxxiT.
Dionvsius,
X[xxi].
Ibid.
Livy, X
[Dion.
Halic,
X. xxv].
Livy, V
[xxii. i].
VI [iv.
2-3l.
[Livy, VI.
xiii.6.]
Dionysius,
Fragments
[SeUctions
on Embas-
sies, p. 18].
Livv,
XXV [xiv.
12-13].
Appian,
Punic
Wars
[". 133].
Livy,
XXXVII
[v. 3].
Livy,
XXXVIII
[xxiii. 10].
exactness call ' pillageable property ' ; money, and other movables,
costly or cheap.
Quintus Fabius, after defeating the Volscians, gave orders that
the pillageable property and spoils be sold by the quaestor ; he him-
self brought back the money. The same general, after the conquest
of the Volscians and the Aequians, gave the captives, with the excep-
tion of the Tusculans, to the soldiers, and permitted them to carry
ofT the population and the herds in the land belonging to Ecetra.
When Antium was captured, Lucius Cornelius deposited in the
treasury the gold, silver, and copper, sold the prisoners and booty
through the agency of the quaestor, and allowed the troops to have
articles of food and clothing. Similar to this was the policy of Cin-
cinnatus, who, after taking Corbio, a town of the Aequians, sent the
more valuable objects in the booty to Rome, and divided the rest
among the centuries.
After the capture of Veii Camillus contributed nothing to the
public treasury except the money from the sale of the captives ; and
when the Etruscans were beaten and the captives sold, from the money
thus obtained he paid back to the women the gold they had con-
tributed, and set up three libation saucers of gold in the Capitoline
temple. When Cossus was dictator, all the booty from the Volscians,
except the persons of freemen, was granted to the soldiers.
3. Fabricius, after conquering the Lucanians, Bruttians, and
Samnites, enriched his troops, paid back the war taxes to the citizens,
and contributed forty talents to the public treasury.1 Quintus
Fulvius and Appius Claudius, when the camp of Hanno was captured,
sold the booty and made a division, giving largesses to those whose
services had been exceptional. On the taking of Carthage, Scipio
gave what was in the city to the troops to plunder, excepting the
gold and silver [483] and the votive offerings. Acilius, on the
capture of Lamia, in part divided and in part sold the spoil. When
the Galatians had been beaten and the arms of the enemy burned
in accordance with a Roman superstition, Gnaeus Manlius ordered
all to bring together the rest of the spoil, and either sold it, in so far
as it was to be brought to the public treasury, or divided it among
the soldiers, taking care that the division should be as fair as possible.
XXI. — The committing of peculation in the distribution of booty
1. From what we have said it appears that among the Romans,
not less than among most other nations, booty was the property of
the Roman people, but that some right of decision as to its dis-
1 Fabius did likewise with the money from the sale of the prisoners after the capture of Tarentum,
although he distributed the rest of the spoil to the soldiers.
Chap. VI] On the Right of Acquiring Things taken in War 683
tribution was granted to commanders ; nevertheless, as we have
previouslv stated, under the condition that they owed to the people
an accounting for their actions. This, among other things, we
learn from the case of Lucius Scipio, who was condemned in a trial
for peculation, because, as Valerius Maximus states, he had received
480,000 sesterces in silver more than he transferred to the treasury ;
and also from the cases of others to which we have previously referred.
2. Marcus Cato, in the speech which he wrote on the subject
of booty, according to Gellius, complained in passionate and noble
language of the impunity and licence accorded to peculation. Of
the speech there remains this fragment : ' Those who steal from
private persons pass their days in bonds and fetters ; those who
steal from the state pass theirs in gold and purple.'
On another occasion the same speaker had said that ' he wondered
that any one dared to place as furniture in his house statues that had
been captured in war '. Cicero also increases resentment at the
peculation of Verres, by pointing out that he had carried off a statue
which in fact had been taken from the spoil of the enemy.
3. Not commanders alone, but even soldiers, were held on the
charge of misappropriation of booty if they had not brought it to
the public treasury ; for, as Polybius says, they were all bound by
an oath ' that no one would appropriate anything from the booty,
but would carry out his pledge in scrupulous regard for his oath '.
To this we may perhaps refer the formula of the oath in Gellius, by
which, within the lines of the army or within the range of about ten
miles, the soldier was enjoined not to carry orT anything which was
of greater value than a silver sestertius ; or in case he had taken
anything of the sort, to bring it to the consul, or to confess the fact
within the next three days. Hence we may understand what Modes-
tinus meant by the statement : ' He who has secreted booty captured
from the enemy is guilty of peculation.' This statement of itself
should be sufficient to warn interpreters of the law against believing
that things captured from the enemy are acquired by individuals,
since it is clear that peculation can only occur in connexion with
property that is public, sacred, or religious.
All these considerations clearly lead to the view which we have
expressed above, that, apart from the civil law, and primarily, what
is captured in acts of war becomes the property of the people or of
the king who wages the war.
Digest,
XLVIIL
xiii. 15
(13).
XXII. — Some change may be made with respect to this common rigbt of
booty by a legal enactment or by another }s act of will
1. In the statement just made we said, ' apart from the civil
684
On the Law of War and Peace
[Book III
2 Muca-
bees, viii,
28, 30.
Calderi-
nus, Con-
silia, 85 ;
Joh. Lu-
pus, De
Bello, § si
bene adver-
tas; Jason,
On Dig.,
XXX. i.
9 ; Fran-
ciscus 4
Ripa, On
Dig., XIX
ii. 1, no. 5 ;
Covarru-
On
Sext, V.
ult. 4, pt.
2, § 1
Bonnni,
Decade V,
Book IV.
On Bene-
fits, IV xv
[Inst.or ,
XII. vii.
10.]
Annals,
XI.
viil.
law ', and ' primarily ', or directly. The former restriction is added
because with regard to things that have not yet been actually acquired
a law may ordain in the public interest, whether that legislative act
is a law of the people, as among the Romans, or the law of a king,
as among the Jews and elsewhere. Besides, under the name of law
WC wish to include also custom when rightly introduced.
The second qualification leads to this, that we may know that
booty, just as other things, may be conceded by a people to others
not only after acquisition, but also prior to acquisition, in such a way
that, when the capture has ensued, the claims thereby arising are
immediately united in title, as the jurists say. And this concession
can be made not only to specific persons, but also to classes, as in the
times of the Maccabees part of the spoil was given to widows, old
men, and needy wards ; or even to chance persons, after the fashion
of the things thrown to the mob, which the Roman consuls made the
property of those who caught them.
2. Furthermore, this transference of a right, which is brought
about by a law or grant, is not [484] always a mere gift. It some-
times represents the fulfilment of a contract ; sometimes either
a payment of what is owed, or a reimbursement for losses which some
one has suffered, or compensation for a personal contribution to the
war in money, or in service, as when allies and subjects serve either
without any pay or for such pay as does not correspond with their
service. It is for these reasons, as we see, that an assignment of the
whole booty, or a part of it, has usually been made.
XXIII. — Thus booty may be granted to allies
Our jurists, in fact, note that almost everywhere the custom has
been tacitly followed, that either allies or subjects, who wage war
without pay, at their own expense and danger,1 appropriate what
they capture. In the case of allies 2 the reason is evident, for naturally
one ally is bound to make good to another the losses which ensue
from a joint or public enterprise.
There is also the further consideration that it is hardly customary
for service to be rendered gratis. ' Thus physicians ', says Seneca,
1 are paid the price of service, which they earn, because they are
called from their own affairs and are at our disposal.' Quintilian
judges the same thing fair in the case of orators, because the very
giving of their service and time to the business of others deprives
them of the opportunity of earning in other ways. This is what
Tacitus called ' Neglecting the affairs of one's house in order that
. Poland, XIX [= p. 430].
• Amalasuntha makes use of it in a letter to Justinian ; [Procopius,] Gothic War, I 1 1. iii].
Chap. VI] On the Right of Acquiring Things taken in War 685
one may apply himself to the business of others \ Therefore it is
credible that, unless some other cause should appear, as for instance
pure kindness, or a preceding agreement, the hope of enriching
oneself from the enemy was regarded as recompense for loss and
service.1
XXIV. — Booty is often granted to subjects ; with illustration by means
of various examfiles on land and sea
1. In the case of subjects the right to booty does not follow
with equal clearness, because subjects owe their service to their
state. But this reason is offset by the fact that where not all subjects
but only a part are in service the latter are entitled to compensation
from the body of the state for having contributed more service and
expense than the others, and they are much more entitled to com-
pensation for losses. In place of this clearly defined compensation
the expectation of the whole or a part of an uncertain booty is readily,
and not without reason, conceded. And so the poet writes :
Let the booty fall to those whose labours earned it.
2. With respect to allies, there is an example 2 in the Roman
treaty by which the Latins were admitted to an equal share of the
booty in the wars which were waged under the auspices of the Roman
people. So in the war which the Aetolians waged with the Romans
as their helpers, the cities indeed, and the territory, fell to the Aeto-
lians, but the captives and movable property to the Romans. After
the victory over King Ptolemy, Demetrius gave a part of the booty
to the Athenians. Ambrose, in discussing the story of Abraham,
shows the fairness of this custom : ' He wisely asserted that a part
of the gain, as recompense for their toil, should be allotted to those
who had been with him, perhaps as allies to give him aid.'
3. With respect to subjects there is an example in the case of
the Jewish people ; half of the spoil fell to those who had been
under arms.3 The soldier of Alexander made his own the booty
which he had seized from private persons, excepting that he was
accustomed to bring certain things of special value to the king ;
hence we see that those who were said to have conspired at Arbela
1 See Plutarch, Marcellus [viii = p. 302].
2 The Roman people furnished the ancient Latins with the third part of the spoil ; Pliny, Book
XXXIX, v [Natural History, XXXI V. v]. The Swiss cantons divide the spoil according to the proportion
of the soldiers furnished, as Simler attests. In the war against the Turk, the Pope, the Emperor, and
the Venetians made the division on the basis of expenditures ; Paruta, VIII. Pompey granted Lesser
Armenia to Deiotarus, king of Galatia, because he had been an ally in the Mithridatic War [Eutropius,
VI. xiv].
3 The Pisans gave a part of the booty to those who had guarded the houses ; Chalcocondylas,
Book V [V = p. 244].
Livy, IV
andXXIV
[II. xxxiii];
Dion.
Hal., VI
[xcvj .
Polvbius,
XI [X.
xvi-xvii] ;
Livy,
XXXIII
[xiii. 10].
Plutarch,
Demetrius,
[xvii = p.
896 a].
On Abra-
hatn, I. iii
[17].
Numbers,
xxii [xxxi],
27, 47 ;
j Sam.,
XXX. 22,
and later ;
2 Macca-
bees, viii.
28, 30.
Plutarch,
Apo-
thegms
[ = p. 180
c].
686
On the Law of War and Peace
[Book III
: iii. xi.
23.]
2 Sam. ,xii.
30.
Title On
tht King.
Arias, De
BeUo, no.
162; Bel-
lini.pt. II,
tit. xviii,
no. 3;
Doneau,
Conxnxen-
taries, IV.
xxi;
Sylvester,
word
bellunt, 1.
pr., from
Trova-
mala.
Wesen-
beck, On
Institutes,
II. i. § 17.
Appian,
CivilWars,
I[vi.5x].
[Pharsa-
lia,] VII
[738 «.].
Appian,
CivilWars,
IV[Xvii.
135].
Tacitus,
Historus,
III [xix].
were accused of claiming for themselves all the booty, so that they
would bring nothing into the treasury.
4. But in the case of Alexander's army what had been the
public property of the enemy, or royal property, was exempt from
this licence. In consequence we read that, when the Macedonians
had broken into the camp of Darius at the river Pyramus, they
carried ofl a huge amount of gold and silver, and left nothing un-
touched except the king's tent,1 ' in order that ', says Curtius, ' follow-
ing the traditional custom, they might receive the victor in the tent
of the vanquished king.' Similar to this was the custom of the Jews,
who placed the crown of the conquered ruler upon the victorious
king and [485], as we read in the Digest of the Talmud, allotted to
him the royal furniture taken in the war.
In the same category is that which we read in the exploits of
Charlemagne ; when he had conquered the Hungarians, the riches of
private individuals fell to the soldiers, the riches of the king to the
public treasury. But among the Greeks the ' booty ' was public pro-
perty, as we have shown above, and the ' spoils seized while fighting '
were the property of individuals. They call ' spoils seized while
fighting ' (a-KvXa) what is taken from the enemy in the course of the
battle, and ' booty ' (kdcfavpa) what is taken afterwards. This
distinction is observed also by some other peoples.
5. However, from what we have said before it is quite clear that
among the Romans, at least in the period of the early republic, not
so much was granted to the soldiers. In the civil wars they began
to receive somewhat greater indulgence. Thus you may read that
Aeculanum was sacked by the soldiers of Sulla. After the battle
of Pharsalus Caesar turned the camp of Pompey's forces over to his
soldiers to plunder, according to Lucan, with these words :
Your reward for bloodshed remains.
This it is my part to point out ; for I shall not call a donation
What each to himself shall give.
The troops of Octavian and Anthony pillaged the camp of
Brutus and Cassius. In another civil war, when the Flavians had
been led to Cremona, although night was at hand, they hastened to
take the rich colony by assault. They feared that otherwise the
riches of Cremona would come into the possession of the prefects
and legates ; for they knew that in fact, as Tacitus says, ' the spoil
of a city that has been stormed belongs to the soldiers ; that of one
which has been surrendered, to the general '.
1 See also Diodorus, Book VI [XVII. xxxv], and Plutarch, Alexander [xx=p. 676]. See similar
ints in Xenophon, On the Training of Cyrus, II [IV. vi. 11], and Book IV of his war [Anabasis,
IV. iv. ai] and \
Chap. VI] On the Right of A cquiring Things taken in War 687
6. As discipline declined such looting was the more willingly
conceded to the troops, that they might not neglect the enemy
and burden their hands with spoil while there was still danger.
Disregard of such precaution has made very many victories fruitless.
When Corbulo had stormed the fort Volandum in Armenia,
' the mob unfit for war ', as Tacitus relates, ' was sold at auction,
and the rest of the booty fell to the victors '. According to the same
writer, in a battle in Britain Suetonius urges his men to continue
the slaughter without thinking of the booty, adding that when the
victory should be won everything would fall to their lot. Similar
accounts you may find among other authors generally. Add also
what we have just cited from Procopius.1
7. There are, however, certain things of so slight value that
they are not worth making public property. These things every-
where by consent of the people belong to those who take them.
Such under the early Roman republic were spears, javelins, firewood,
fodder, water-skins, leathern money-bags, torches, and money smaller
than a silver sestertius ; for we read in Gellius that these exceptions
were added to the military oath.
Very like this concession is that which is made to sailors even
when they are paid for their service. The French call this spoliation
or pillage, and therein include clothing, and gold and silver under
ten crowns. Elsewhere a certain part of the booty is given to the
soldiers, as in Spain, where now a fifth,2 now a third, and again
a half remains with the king, and a seventh, or at times a tenth,
with the commander of the army ; the rest belongs to the individual
captors, with the exception of ships of war,3 which fall wholly to
the king.
8. It may happen also that the division of the booty is made
after account has been taken of services, dangers, and expenses, as
among the Italians, where a third of a captured ship falls to the
master of the victorious vessel, an equal part to those whose goods
were in the ship, and the same to those who engaged in the fighting.
Sometimes, again, this occurs, that those who conduct a war
at their own risk and expense do not receive all the spoil, but owe
a part to the public authority, or to him who derives his right from
the public authority. Thus among the Spaniards, when in a war
Tacitus,
Annals,
XIII
[xxxix].
Annals,
XIV
[xxxvi].
XVI. iv.
Constitu-
tions of
France,
XX. xiii.
10 and 16.
Law of
Spain, IV.
xx vi. 2.
Consolato
del Mare,
cclxxxv.
1 He records, Vandalic War, II [II. xxi], that when Solomon was carrying on war against the
Levathae his soldiers were angry with him because he held back the spoil. He said [490] that he
did this in order that, when the war was ended, he might distribute it according to each man's deserts.
Procopius says also, Gothic War, II [II. vii], that all the spoil from Picenum was brought to Belisarius,
who divided it on the basis of merit, and adds the reason : ' It was not fair that some, at the cost of
much effort, should kill the bees, while others, at their ease, should feed upon the honey.'
2 This custom is attributed to the Turks also by Leunclavius, [Turkish Hislory,] III and V.
8 So among the Goths an exception was made of engines of war for the kings ; Johan Magnus,
Historia Suedica, XI. xi [Barbeyrac believes this a misquotation].
1569.27 3 A
688
On the Law of War and Peace
[Book III
[Law of
Spain,]
XIX.
XXVI
14.
Constitu-
ttons of
France,
XX. xiv.
1.
Instruc-
tiones Rei
:imae,
xxii.
[Institutes
ofOratory,]
[V.x.114].
ships are fltted out at private expense, part of the spoil is due to the
king, and part to the highest naval authority. According to the
French practice the latter receives a tenth, and the same [486]
is customary among the Dutch, but with them a fifth part of the
booty is first deducted by the state. On land, however, it is now
the general custom that in the sack of towns, or in battle, each should
have as his own what he has taken ; but what is taken in raids should
be the common property of those in the detachment, to be divided
among themselves according to their rank.
XXV, — The application of what has heen said
As a result of these considerations we are to know that, if within
the jurisdiction of a nation that is not involved in war a dispute
arises with respect to something that has been captured in war, the
thing is to be adjudged to him whose case is supported by the laws
or customs of the people on whose side capture has been effected ;
if this is impracticable, then by the common law of nations the thing
is to be adjudged to the people itself, provided only that it has been
taken in an act of war.
From what we have previously said, it is abundantly clear that
what Quintilian adduces in favour of the Thebans is in general not
true, that in a matter which can be brought into court the right of
war does not hold good, and that what is taken by armed force can
only be retained by armed force.
III. vi. 5.
Livv, LV
[XLV.
xliv. II].
XXVI. — Whether things which have been taken outside the territory of
either belligerent may be acquired by the law of war
1. Things which do not belong to the enemy, even if found
among the enemy,1 do not become the property of the captors ; for
this, as we have said already, is not in accordance with the law of
nature and has not been introduced by the law of nations. Thus
the Romans say to Prusias : ' If this territory had not belonged to
Antiochus, clearly it would not have been made territory of the
Roman people.' 2 Nevertheless if in such things the enemy enjoys
any right which is connected with possession, as a right of pledge,
restraint, or servitude, there is nothing to prevent this right being
acquired by the captors.
2. The question is also often raised whether things captured
outside the territory of either belligerent may become the property
^ee above, III. iv. 7.
1 Thus, after Ju^nirtha was conquered, Bocchus did not acquire the land which had not belonged
to Jugurtha, but to the children of Bocchus [or rather Massinissa] ; Appian, Selections on Etnbassies,
xxviii [ = Sumidian Ajffairs, iv]. See a similar instance in Krantz, Saxonica, XII [XII. vii].
Chap. VI] On the Right of Acquiring Things taken in War 689
of the captors ; and this is debated with regard both to things and
to persons.
If we take into account the law of nations only, I think that
this subject need not be considered, since we have said that an enemy
may be justly slain in any place. But he who holds authority in
a place may by a law of his own prohibit any such action ; and if
such an act is committed contrary to his law he can demand satis-
faction for it as for a crime. Similar to this is the ruling that a wild
animal caught on the land of another belongs to the captors, but
access to it may be prohibited by the owner of the land.
Dig. XLI.
i. 3.
Dig. VIII.
iii. 16.
XXVII. — In what way the right of which we have spoken is peculiar to
a public war
Now this external right of acquiring things taken in war is so
peculiar to a war that is public according to the law of nations that
in other wars it finds no place. For in other wars with foreigners
property is not acquired by the violence of war but as compensation
for a debt which cannot otherwise be obtained.
In wars between citizens, whether these be great or small, no
change of ownership is made except by the authority of a judge.
Sylvester,
word bel-
*«w, 1, §§ 3
and 11,
verse 8.
3 A2
CHAPTER VII
Dig. I.
Digest,
XI. IX. xv.
5- §1-
Digcst,
XLIX.xv.
12.
[II. lviii.]
That
Every
Virtuons
Man is
Free [iii].
Orations,
xv >p.
ON THE RIGHT OVER PRISONERS OF WAR
I. — According to the lazu of nations all persons captured in a war that is
public hecome slaves
1. By nature at any rate, that is, apart from a human act, or
in the primitive condition of nature, no human being.s are slaves, as
we have said elsewhere.1 In this sense it is correct to accept what
was said by the jurists, that slavery is contrary to nature. Neverthe-
less, as we have shown also in another connexion,2 it is not in conflict
with natural justice that slavery should have its origin in a human
act, that is, should arise from a convention or a crime.
2. But in the law of nations, which we are now discussing,
slavery has a somewhat larger place, both as regards persons and as
regards effects. For if we consider persons, not only those who
surrender themselves, or promise to become slaves, are regarded as
slaves, but all without exception who have been captured in a formal
public war become slaves from the time when they are brought within
the lines, as Pomponius says. And no crime is requisite, but the fate
of all is the same, even of those who by their ill-fortune, as we have
said, are caught in the enemy's territory when war has suddenly
broken out.
3. Polybius says in the second book of his Histories: ' What
should these persons sufTer so as to pay a fitting penalty ? Perhaps,
one would say, being sold as slaves with wives and children, after
they have been conquered in war. But this is also appointed by the
law of war 3 for those to endure who have done no impious deed.'
Hence comes what Philo notes in these words : ' Often at unforeseen
times many good men have lost their inherited freedom.'
4. Dio of Prusa, after enumerating the ways of acquiring
[491] ownership, says : ' And a third form of possession is when-
ever one has taken a prisoner in war and in this way holds him as
1 II. xxii. 11. * II. v. 27.
• Servius, On the Aeneid, I fl. 619], says of Hercules : ' When Laomedon tried to ward him from
this gate, he was killed, and his daughter, Hesione, was carried off in accordance with the law of war,
and delivered toTelamon, Hercules's comrade, who had first scaled the wall ; of this union Teucer was
the issue.' Again, On the Aeneid, X [X. 91], in telling the same story : ' The Greeks refused to restore
Hesione to the Trojans, saying that they held her by the law of war.'
Josephus, in Book XIV [Antiquities of the Jews, XIV. xii. 2], says : * Since they had not been
captured in accordance with the law of war.' * By the law of captives ' and elsewhere, ' By the law
established for prisoners of war ', says Menander Protector ffrag. 29, p. 66, edit. DindorfJ.
In the preceding chapter you find much that is applicable also here, for the reason that writers
either combine, or treat identically, captured things and captive men.
690
Chap. VII] On the Right over Prisoners of War
691
a slave.' So Oppian in his second book On Fishery calls it a law of
war to carry off into slavery boys that have been captured in war.
II. — Also the descendants of persons captured in zvar hecome slaves
Not only do the prisoners of war themselves become slaves, but
also their descendants for ever, that is to say those who are born of
a slave mother after her enslavement. This is what Marcianus said,
that by the law of nations those become our slaves who are born of
our slave women. In speaking of the wife of a German chief, Tacitus
said that her womb was subject to slavery.
III. — What may be done to prisoners of war zoith impunity
1. Moreover the efTects of this law are unlimited, just as Seneca
the Father said that there is nothing which a master is not permitted
to do to his slave. There is no sufTering which may not be inflicted
with impunity upon such slaves, no action which they may not be
ordered, or forced by torture, to do, in any way whatsoever ; even
brutality on the part of masters towards persons of servile status is
unpunishable except in so far as municipal law sets a limit and a
penalty for brutality. ' Among all nations alike ', says Gaius, ' we
may see that masters have had the power of life and death over
slaves.' Then he adds that limits have been set to this power by the
Roman law, that is on Roman soil. Here applies the note of Donatus
on Terence, ' What is it not lawful for a master to do to his slave ? '
2. Also everything that has been captured is acquired, along
with the person, for the master. The slave who is himself under the
power of another, says Justinian, can have nothing of his own.
IV. — The property of captives, even if incorporeal, belongs to their
master
On these grounds the view of those who say that incorporeal
rights are not acquired by the law of war * is refuted, or at any rate
restricted. It is true that such rights are not acquired primarily
and directly, but through the medium of the person to whom they
had belonged.
Nevertheless, we have to make exception of those rights which
have their source in a peculiar capacity of the person and are hence
inalienable, as the right of the father. For if these rights can remain,
they remain with the person ; if not, they are extinguished.
1 Valerius Maximus, VI. ix. it, says of Gnaeus Cornelius Asina : ' As consul he was captured by
the Carthaginians at the Lipara Islands. after he had lost everything by the law of war.' ' The slave
has lost the right of ownership over other things not less than over himself,' says Philo, That Every
Virtuous Man is Free [vii].
[Halieu-
tica,
II.316]
Dig. I. v.
3-fi.
Annals, I
[lix].
Contro-
versies, I.
v [X. v].
Dig. I. vi.
1. §1.
Institutes,
I. viii. § 1.
[On\
Andria,
Act I,
scene i
[36].
Inst. II.
ix. § 3-
692 On the Law of War and Peace [Booklll
V. — The reason why the law has thus been established
i. All these rights have been introduced by the law of nations,
with which we are dealing, for no other reason than this : that the
captors, mollified by so many advantages, might willingly refrain
from recourse to the utmost degree of severity, in accordance with
which they could have slain the captives, either immediately or after
a delay, as we have said before. ' The name of slaves (servi) ', says
Dig. l. Pomponius, ' comes from the fact l that commanders are accustomed
xvi. 239. t0 se]i prisoners and thereby to save them (servare) and not to kill
them.' I have said ' that they might willingly refrain ' ; for there
is no suggestion of an agreement whereby they may be compelled
to refrain, if you are considering this law of nations, but a method
of persuading them by indicating the more advantageous course.
2. For the same reason this right is transferred to others, just
as the ownership of things. Further, it has been agreed that owner-
ship should be extended to children ; the reason is that otherwise,
if the captors had used their full right, the children would not have
been born. . Whence it follows that children who were born before
the catastrophe do not become slaves, unless they are themselyes
captured.
Moreover, it has been acceptable to the nations that children
should follow the status of the mother, for the reason that the unions
of slaves were regulated neither by law nor by definite oversight,
and consequently the father was indicated by no adequate pre-
sumption. In this sense we are to understand the statement of
Dig. 1. v. Ulpian : ' It is a law of nature, that he who is born outside of lawful
24' matrimony follows the status of his mother ' ; that is, the law repre-
sents a general custom which has grown up from a natural reason,
11. xiii. just as we have elsewhere shown that the term ' law of nature ' is
26- at times employed with some inexactness.
3. The rights under consideration, moreover, have not been
introduced by the nations in vain. This we may perceive from
what happens in civil wars, in which we find that on many occasions
captives [492] have been killed because they could not be reduced
[xiv=P. to slavery. The fact is noted by Plutarch in his Otho, and by
!.°.73 ~ , Tacitus in the second book of his Histories.2
4. Whether those who have been captured become the pro-
perty of the people, or of individuals, must be decided by what we
have said in regard to booty ; for in this case the law of nations has
1 See also Servius, On the Aeneid, Book V [IV. 327], where he explains the origin of the word saltem.
* Also in Book III [III. xxxiv], regarding the captured inhabitants of Cremona, whom ' the united
opinion of Italy had caused to be a prey useless to the soldiers'.
(II. xliv.]
Chap. VII] On the Right over Prisoners of War
693
put men in the same category as things. Gaius the jurist said in his
Daily Questions, Book II : * Also what is captured from the enemy
becomes at once, by the law of nations, the property of the captors,
to the extent indeed that even free men are led off into slaverv.'
Dig. XLI.
i. 5 and 7.
VI. — Whether it is permissible for those who have been captured to fiee
1. Nevertheless, as regards the belief of some theologians, that
it is unlawful for those to flee who have been captured in an unlawful
war, or are born of captives, unless they flee to their own people,
I have myself no doubt that the view is erroneous. There is indeed
this difference, that if captives make their escape to their own people
while the war is still in progress they attain their freedom by right
of postliminy ; x if they flee to others, or to their own people, after
peace has been made, they must be given up to the master who
claims them. But it does not follow as a consequence that a bond
of conscience is laid also upon the captives ; there are many rights
whiGh look only to an external judgement, and such are the rights
of war which we are now explaining.
There is, further, no reason for any one to raise the objection
that from the nature of ownership such an obligation becomes bind-
ing on the mind. For I shall reply that, since there are many forms
of ownership, it is possible that one may exist which is valid only
in a judgement that is human and at the same time continues a con-
dition which arises also in other kinds of rights.
2. Such in fact, to some extent, is also the right of nullifying
wills, on account of the lack of some formality which the civil laws
prescribe. The more acceptable view is, that what has been left by
such a will may be retained with a clear conscience, at least as long
as the will is not contested.
Not very different is the ownership of one who in accordance
with the civil laws has exercised prescription in bad faith ; for his
ownership also is protected by the civil courts. By making the dis-
tinction, we easily loosen the knot which Aristotle ties in his Sophistical
Refutations, Book II, chapter v : ' Is it not right for each one to have
what is his own ? But what any judge may decide according to his
opinion, even if this be false, is valid according to the law. There-
fore the same thing is both right and wrong.'
3. In the question before us no reason can be imagined why the
nations should have had in view anything else than that external
restraint. For the opportunity of claiming a slave and restraining
Lessius, I.
v, dub. 5.
Soto, De
Iustitia et
Iure, IV,
qu. iv, art.
3 ; Les-
sius, II,
xiv,dub.3.
[Sophisti-
cal Refuta-
tions, xxv.
9.]
1 See below, III. ix. 5. Pliny, Natural History, VII. xxviii, says of Marcus Sergius: 'Twice
captured by Hannibal, he twice escaped from his chains.'
694
On the Law of War and Peace
[Book III
Digest,
XLIX.xv.
26.
Digest,
XUX.it.
19. pr.
Baiiez,
On II. ii,
qu. 40.
Decretum,
II. xvii.4.
37 f.
him, and further, of putting him in bonds and retaining his property,
was enough to induce captors to spare captives. If the captors were
so ferocious as not to be influenced by these advantages, certainly
they would not have been aflected by the imposition of any moral
restraint. Yet, if they believed such a restraint at all necessary for
themselves, they could have exacted an assurance or an oath.1
4. However, in a law which has been established not according
to natural equity, but to avoid a greater evil, we should not rashly
adopt an interpretation which would make criminal an act otherwise
permitted. Florentinus the jurist says : s It makes no diiference how
a captive has returned ; whether he has been set free, or has escaped
from the power of the enemy by force or by guile.' This is so because
the right of captivity is of such a sort, that in another sense it is
often also a wrong, a characterization which is applied to it by the
jurist Paul. It is a right in respect to certain effects ; a wrong, if
wc regard its intrinsic nature.
Hence this also is apparent. If any one who has been captured
in an unlawful war has come into the power of the enemy, his con-
science is not tainted by the crime of theft if he secretly takes away
his own property, or a recompense for his toil,2 in case it is right
that any should be furnished him over and above his keep, provided
that he neither in his own name, nor in that of his state, is in any
way [493] indebted to his master, or to him whose right his
master has received. And it does not matter that such flight and
abstraction when detected are usually punished with severity. For
these things and many others are done by the more powerful, not
because they are just, but because it is to the advantage of the more
powerful to do them.
5. Certain canons 3 forbid any one to persuade a slave to desert
his master's service. If you refer this to slaves who are undergoing
a just punishment, or have bound themselves by a voluntary agree-
ment, it is a just injunction. But if you refer it to those who have
1 Bembo, Hislory, X, holds that the soul is not tainted by the crime of theft, if one removes
his own propertv.
2 Here applies what we have quoted above from Irenaeus and Tertullian, in the notes to II. vii. 2,
where there is a discussion regarding the Jews after their exodus from Egypt.
To these the following relates, from Philo's On the Life of Moses [I. xxvj : ' Moreover when they
were being driven out and pursued, being mindful of their noble race, they began a work worthy of
freeborn inen, who had not forgotten what they had suffered through injustice and deceit. [495.]
For they carried forth much spoil, in part on their persons and in part on beasts of burden. Their
motive was not avarice. nor, as some calumniator has said, greed of another's property — for whence
could this have occurTed to them ? — but they desired, first, to have the pay which was necessary for so
long a period of service ; and in the second place, they sought in recompense for servitude forcibly
imposed upon them a penalty, not commensurate with lt, but far less.' And more that follows in the
same author.
There is a similar story of St. Malchus given by Jerome in his Letlers, and of the Lombard Leupges,
which his great-grandson Paul Warnefrid [Paulus Diaconus] tells us in Book IV [IV. xxxix]. Add also,
if you please, the Confession published under the name Lanicius Patricius.
' 1' I xi of Gangres. See above II. v. end.
Chap. VII] On the Right over Prisoners of War 695
been captured in an unlawful war, or have been born of captives, it
teaches that Christians should encourage Christians to be patient
rather than to engage in an action which, although permissible, might
yet offend minds alien to Christianity or otherwise weak.
In a similar way we may understand the admonitions of the
Apostles to slaves, except that these are seen rather to demand
obedience from slaves while in servitude. This is in accord with
natural justice ; for food and service have a reciprocal connexion.
VII. — Whether it is permissihle for those who have heen captured to
resist their master
But I think that it was correctly said by the theologians to whom
I have just referred, that a slave cannot resist a master who is exercis-
ing that external right without violating the duty of justice.
Between this case and that which we have just discussed there
is a manifest difference. The external right, which consists not only
in impunity of acting but also in the protection of the courts, will
be of no effect if a right to offer resistance remains on the other side.
For if it is permissible forcibly to resist a master, it will also be per-
missible forcibly to resist a magistrate who protects the master,
when, nevertheless, according to the law of nations, the magistrate
should defend the master in such ownership and the enjoyment
thereof. This right therefore is like that which we have elsewhere
attributed to the highest authorities in each state, in saying that it
is not legally nor morally permissible forcibly to resist them. Thus
Augustine also joined the two rights when he said : ' Princes are to
be endured by the commons, and masters by their slaves, in such
a way that temporal things may be borne in the exercise of long-
suifering, and things eternal may be hoped for.'
VIII. — The lazv under consideration has not always existed among all
nations
But the fact must further be recognized that this law of nations
with regard to captives has not always been accepted, nor accepted
among all nations, although the Roman jurists speak of it as universal,
designating the more prominent part by the name of the whole.
Thus among the Jews,1 who by their special institutions were separated
from the common practice of other peoples, there was an asylum for Deut
slaves ; at least, as the commentators rightly note, for slaves who had
come into this unhappy condition through no fault of their own.
From such a source it seems that there may have arisen the
1 See [Moses de Kotzi,] Precepts Forbidding, 180.
xxin. 15.
696
On the Law of War and Peace
[Book III
Bodin,
De Repub-
lica, I. v.
Bartolus,
On Digest,
XLIX.xv.
Co-
varnivias,
OnSc
ult. 4. Pt.
ii, § ii, no.
6; Vic-
toria, De
Iure Belli,
no. 42 ;
Bohier,
Decisions,
clxxviii ;
Sylvester,
word beU
lum, 1,
no. 1.
[Grego-
ras,] IV
[ix].
Plato,
Republic,
V[xv =
469 ej.
Bartolus,
On Digest,
III. v. 20;
Bohier,
Decisions,
clxxviii ;
Constitu-
tiones
Regni His-
Paniae,
VHI.xxvi.
right of claiming their freedom which is given to slaves in the countiy
of the Franks ; although we see that this is now granted not only
to those captured in war, but also to other slaves of any sort.
IX. — The law under consideration does not now exist among Christians ;
what has heen substituted for it
1. Christians * furthermore have as a whole agreed that those
who are captured in a war which has arisen among themselves do not
become slaves so as to be liable to be sold, constrained to labour,
and sufTer the fate of slaves in other respects. In this they are surely
right, because they have been, or should have been, better instructed
in the teachings of Him who has sanctioned all charity than to be
unable to be restrained from the slaughter of unfortunate men in
any other way than by the concession of a lesser cruelty.
Gregoras 2 writes that this treatment of captives in former times
was handed down from ancestors to descendants among those who
professed the same religious belief, and that it was not peculiar to
those who lived under Roman rule but was also common to Thessalians,
Illyrians, Triballians, and Bulgars. And so this degree of progress at
any rate, small though it is, has been accomplished by reverence for
the law of Christ ; a degree of progress which Socrates [494]
failed to secure, although he had recommended such treatment of
captives by the Greeks among themselves.
2. Moreover, the practice of Christians in this matter is followed
also by Mohammedans among themselves.3 Nevertheless, even
among Christians the custom still prevails of keeping prisoners under
guard until a ransom is paid, the amount of which is decided by the
victor, unless some definite agreement has been made.
Furthermore the right of guarding captives is usually granted
to the individuals who have taken them, except in the case of persons
of high rank ; for the customs of most nations give the right over
these to the state or its head.
1 And also the Essenes, from whom the first Christians originated. See Josephus [Antiquities of
the Jews, XVIII. i. 5].
* Gregoras, Book IV [IV. ix], where these words are found : ' This is a custom which has descended
from antiquity to posterity, and has never been corrupted, not only among the Greco-Romans and
Thessalians, but also among the Illyrians, Triballians, and Bulgars, because of a belief common to all,
that it is permissible to collect plunder, but not to make men prisoners nor to kill them after the time
of battle.'
Adam of Bremen says of Saint Ansgar : ' Thence he returned to Hammaburg and reproved the
peoples north of the Elbe for the sale of Christians.' Bohier also mentions this custom, Decisions, clxxviii,
and adds that it is a practice in France, England, and Spain, that if the prisoner is a duke, count, or
baron, he does not belong to the soldiers but to the ruler who is waging the war.
• Chalcocondylas, Book III ; Leunclavius, Books III and XVII ; Busbecq, Epistolae Exolicae, iii.
CHAPTER VIII
sies, X.
v. 15-]
ON THE RIGHT TO RULE OVER THE CONQUERED
I. — By zvar also civil authority is acquired, sometimes as vested in a king,
sometimes as vested in a people ; the effects of such acquisition
1. It is not at all strange if he, who can subject individuals to
himself in personal servitude, is able to subject to himself an aggrega-
tion of men — whether they formed a state, or a part of a state — in
a subjection which may be purely civil, or purely personal, or mixed.
Some one in Seneca's Controversy about a native of Olynthus
uses the following argument : * He, whom I purchased in accordance
with the law of war, is my slave. This, men of Athens, is advan-
tageous for you ; otherwise your empire, in so far as it has been
acquired by war, is reduced to its ancient limits.' With similar
purport Tertullian said that empires are sought by arms and expanded
by victories. Quintilian declares that kingdoms, peoples, and the
territories of nations and cities, depend upon the law of war. In
Curtius, Alexander says that laws are laid down by the victors and
accepted by the vanquished.
In his speech to the Romans Minio asks : [496] ' Why do
you send a praetor every year with authority and rods and axes to
Syracuse and the other Greek cities of Sicily? Clearly, you would
say, for no other reason than this, that you have imposed these laws
upon those who have been conquered in war.' In Caesar Ariovistus
says : ' It is the law of war that those who have conquered should
rule those whom they have conquered, just as they please ' ; also :
' The Roman people has been accustomed to rule the conquered,
not according to another's dictation but according to its own
judgement.'
2. Justin, quoting from Trogus, relates that up to the time of [M. 70
Ninus those who waged war had sought for themselves not sovereignty
but glory, and, being content with victory, had abstained from
empire ; that Ninus was the first who extended the borders of his
empire, and subjugated other peoples in war ; and that from him
this had passed into a general custom. Bocchus, in Sallust, declares
6 that he had taken up arms to protect his kingdom ; for the part of
Numidia, from which he had expelled Jugurtha, had become his by
the law of war.'
3. Sovereignty, furthermore, may be acquired for the victor ;
either such sovereignty merely as is vested in a king * or other ruler,
1 After the battle at Gaugamela Alexander was hailed as king of Asia [Plutarch, Alexander, xxxiv
= p. 685 b]. The Romans asserted that what had belonged to Syphax was theirs ' according to the law
697
Livy,
XXXV
[xvi. 4].
Gallic
War [I.
xxxvi] .
6g8
On the Law of War and Peace
[Book III
I. iii. n.
and in that case the victor succeeds to the right of the ruler only,
and nothing beyond ; or such as is vested in a people,1 in which case
the victor holds sovereignty in such a way that he can even alienate
it, just as the people could. We have elsewhere said that thus it
has come about that certain kingdoms were held as a patrimony.
;vn. xiv.]
[Excerpta
ex Trag.
et Com.
Gr., edit.
Grotius,
P- 639]
Annals,
XII [xi].
[Agesilaus,
i. 22.]
II. — The right of a master may be acquired over a people, which then
ceases to be a state
1. Even a more fundamental change may be accomplished, so
that, for instance, what was a state may cease to be a state. In such
cases the state that was may become an accession of another state,
as the Roman provinces did ; or it may not be attached to a state,
as when a king waging war at his own expense so subjects a people
to himself that he wishes it to be governed not for the good of the
people but above all else for that of the ruler, and this is the rule
of a master, not of civil authority.
In his Politics, Book VII, Aristotle says : ' There is govern-
ment . . . for the good of the ruler, and government for the good of the
ruled. The former is the government of masters and slaves ; the
latter, the government of free men.' A people, then, which is subject
to a power of this kind, will for the future be no state, but a great
domestic establishment. It has been well said by Anaxandrides :
A state of slaves, good sir, nowhere exists.
2. The two types of authority are thus contrasted by Tacitus :
' To conceive himself as a governor among freemen, not as a despot
among slaves.' Of Agesilaus Xenophon says : ' The states which he
brought under his authority he relieved of all the obligations which
of war ' ; Appian, Selections on Embassies, X. xxviii. In Agathias, Book I [I. v], the ambassadors of the
Goths said of Theodoric : ' Since he had conquered Odoacer, the stranger from Scyros, he held by the law
of war all that had been his.' But when the Huns claimed that the Gepidae were their subjects, because
they had captured the king of thc Gepidae, the Romans denied this claim on the ground that the
Gepidae had a chief rather than a king, and that they did not form a part of his patrimony. This is
recorded by Menander Protector [frag. 28, pp. 63-5, edit. DindorfJ.
1 In the same writer Menander [frag. 46, p. 92], the Persians say with regard to the territory of the
city of Daras : ' Since the city itself had been conquered by them according to the law of war, it was
reasonable that what had been subject to it should belong to them.' Afterthe conquest of the Vandals,
Belisarius claimed that even Lilybaeum in Sicily should yield to the Roman authority, on the ground
that the Goths had given it to the Vandals. But the Goths denied that they had so given it ; Procopius,
Vandalic War, II [II. v].
Henry, son of Frederick Barbarossa, after having captured Sicily, laid claim to Epidamnus,
Saloniki, and other places held by the Sicilians; Nicetas, On Alexis, brother of Isaac [Comnenus],
Book I f I. vii]. Baianus, Chagan of the Avars, said to the emperor with regard to Sirmium : [498]
' That that city belonged to him, seeing that it had belonged to the Gepidae, who had been conquered
by the Avars ' [Menander, frag. 64, p 127, edit. DindorfJ.
Peter, the ambassador of Justinian, said in a speech to Chosroes : ' For how shall he who is lord
of the principal not be lord of the accessory ilto } Fot noither the Lazi nor the Suani ever raised a dis-
pute on this point, that Suania has not from antiquity belonged to the Lazi ' [Menander, frag. 1 1, p. 26,
edit. DindorfJ. Each of these citations is from Menander Protector. Add what is in III. viii. 4.
Chap. VIII] On the Right to Rule over the Conquered 699
slaves render to their masters, and he exacted from them only the
things in which freemen obey their rulers.'
III. — Sometimes the two types of authority are mixed
Hence we may understand the nature of that mixed authority,
which I have said is in part civil and in part that of a master, that is
to say, an authority in which servitude is mixed with a degree of
personal liberty. Thus we read that arms have been taken from
peoples ; that peoples have been forbidden to have any iron except
for agricultural purposes ; and that other peoples have been com-
pelled to change their language and manner of life.
IV. — The possessions of a people, even such as are incorporeal, are also
acquired ; herewith is discussed the question of the written bond of
the Thessalians
1. Moreover, just as the possessions which belonged to indi-
viduals are, in accordance with the law of war, acquired by those
who place the owners in subjection to themselves, so also the posses-
sions of the aggregation of individuals as a whole become the property
of those who subject the aggregation to themselves, if they so wish.
Livy says in regard to those who have capitulated : ' In case all
possessions have been surrendered to him who is superior in arms,1
the victor has the absolute right to decide what he wishes the van-
quished to keep, and of what he wishes to deprive them ' ; and this
statement holds true of those who are conquered in a public war.
Surrender in fact voluntarily permits what force would otherwise
take.
In Livy Scaptius says that ' the land under [497] dispute
had been a part of the territory of the Coriolani ; and when Corioli
was captured, by the law of war it became public land of the Roman
people.' Hannibal, in a speech to his soldiers, recorded by the same
author, declared : ' All the possessions of the Romans, won and
amassed in so many triumphs, will become ours along with the masters
themselves.' The same author makes Antiochus say : * Since, when
Lysimachus was conquered, all his possessions were transferred to
Seleucus in accordance with the law of war, he thought that they
1 See above, I. iv. 8 [I. iii. 8] ; II. v. 31 ; and III. v. 2, and below, III. xx. 49. Add also the follow-
ing from Polybius, Selections on Embassies, cxlii :
' Those who surrender themselves to the Roman authority, first give up the territory which was
theirs, and the cities within that territory, then all men and women who are in this territory or these
cities ; finally. all rivers, harbours, everything sacred and hallowed in its entirety, so that the Romans
are masters of all, but those who have surrendered themselves are masters of nothing at all.'
See what has just been said, III. vii. 4. Justin, in Book XXXV [XXXVI. iii. 8], speaking of the
Jews, says : ' Afterwards along with the Persians themselves they passed under the sway of Alexander
the Great.'
700
On the Law of War and Peace
[Book III
Strabo,
XII [iii.
x].
Dionysius
of Halicar-
nassus, III
[xxxi].
[Inst. 0r.,
V. x. 116.]
Dig. L.
xvii. 118.
Digest,
XLVIII.
V. 22.
Cicero,
Letters to
Brutus, vi
were now under his rule.' Similarly Pompey acquired for the Roman
people what Mithridates had captured in war and had annexed to
his empire.
2. Consequently, the incorporeal rights also, which had be-
longed to the aggregation as a whole, will become the property of
the victor, in so far as he wishes. Thus when Alba was conquered
the Romans claimed for themselves the rights which the Albans had
exercised.
Hence it follows that the Thessalians were entirely acquitted of
their debt of one hundred talents. Although they owed this sum to
the Thebans, upon becoming master of Thebes, Alexander the Great,
by right of victory, made the Thessalians a present of it. Nor is
that true which is adduced on behalf of the Thebans in Quintilian,
that only what the victor himself holds is his, but a right that is
incorporeal cannot be seized by force ; and that the position of an
heir and that of a conqueror are fundamentally different, because
a right passes to the former, but only property to the latter. In
fact he who is master of persons is also master of their possessions
and of every right which pertains to the persons. He who is the
possession of another does not possess for himself, and he who is
not his own master does not have anything in his own power.
3. Furthermore, if any one should leave to a conquered people
the right to form a state, he might still take for himself certain things
which had belonged to the state. It rests with him to decide what
he wishes the measure of his beneficence to be. Caesar imitated the
act of Alexander by making to the people of Dyrrachium a present
of the debt which they owed to some one of the opposite party. In
this case, however, the objection might have been raised that the war
of Caesar was not of the kind in respect to which this law of nations
has been established.1
1 Anthony ordered the Tyrians to restore the territories of the Jews which had not been granted
them by the Roman senate and which had not been held prior to the war of Cassius. This is recorded
by Josephus [Antiquilies of the Jews, XIV. xii. 4]. See also Bizarri, History of Genoa, X.
CHAPTER IX
ON POSTLIMINY
I. — The origin of the word postliminy
1. Just as in regard to those things which are captured from
the enemy, so also in regard to the right of postliminy (postliminium)
no very sound view has been advanced by those who in more recent
times have laid claim to a knowledge of the law. The subject was
treated with greater painstaking by the ancient Romans, but often
rather confusedly, so that the reader could not distinguish what they
ascribed to the law of nations and what to the Roman civil law.
2. With regard to [499] the word postliminium we must
reject the view of Servius [Servius Sulpicius], who thinks that the
latter part is a lengthening of the word without significance ; we must
rather follow Scaevola, who taught that the word was a compound
of post, which indicates a return, and limen.1 ' For limen (threshold)
and limes (boundary) difTer in ending and manner of declension,
although for the rest they are identical in origin — for they come
from the ancient word limo,2 which signified transversum (across) —
and in original idea, just as materia and materies, pavus and pavo,
contagio and contages? cucumis and cucumer ; although in later usage
it developed that limen referred rather to private, limes to public
things. So the ancient word which meant ' to eject from a country '
was eliminare, and the Romans called exile eliminium.*
Cicero,
Topics
[viii. 36],
and Boe-
thius
thereon.
II. — Where postliminy may occur
1. Postliminy, therefore, is a right which arises from a return
to the threshold,5 that is, to.the public boundaries. Thus Pomponius Digest,
says that he who has begun to be within our fortified lines has returned
XLIX. xv.
5-§i.
1 Whence the name Postvorta Dea [Aulus Gellius, Altic Nights, XVI. xvii].
2 Servius, On the Aeneid, XII [XII. 120], and Donatus, On [Terence's] Eunuch, on the phrase limis
oculis [III. v. 63]. Festus : ' Limus, " oblique ", that is, " transverse ", whence also limina.'
Isidore [Etymologies], XV. xiv : ' Limites are called from the ancient word for "across", for
everything that was " across" the ancients called litna, from which comes the limina ostiorum, through
which one goes out and in ; and limites because by them one goes out into the fields.' In the Glossary,
limes is translated as ir\ayia u56s [Corpus Glossariorum Latinorum, vol. II, p. 123].
3 Compages and compago, a word which itself was formerly compagen, as we see from its genitive
case, and the verb derived from it, just as sanguis was formerly sanguen.
4 And colliminium in Solinus [chap. xvj is what is commonly called collimitium.
6 Hence, Tertullian, On Modesty [xv], metaphorically speaking says : ' The postliminy of the peace
of the Church.'
701
702
On the Law of War and Peace
[Book III
Digest,
XLIX. xv
19- §3-
Polvbius,
Plutarch,
Flaminius
;.xiii=p.
376 F].
by postliminy ; Paul defihes such a return when the captive has
entered our frontier.
On similar grounds the agreement of nations has brought the
matter to this point, that postliminy occurs also if a man, or a thing
of the sort in regard to which it has been decided that postliminy
is possible, has come to our friends, as Pomponius says in the passage
cited ; or, as Paul explains by ofFering an example, to a king who
is our ally or friend. In these passages we are to understand as
friends or allies not merely those with whom we are at peace,1 but
those who take the same side in a war. Those who come to such
friends, as Paul says, begin to be protected in the name of the state.
It makes no difference in fact whether a man or thing has come to
them or to his own people.
2. Among those who are friends, it is true, but not on the
same side, prisoners of war do not change their status unless by
a special arrangement. Thus in the second treaty drawn up between
the Romans and the Carthaginians it was agreed that if any prisoners
taken by the Carthaginians from peoples who were friends of Rome
should reach ports subject to the Romans their freedom could be
asserted, and that the friends of Carthage should enjoy an equal
right. In consequence those Romans who were captured in the
second Punic War and had come to Greece by way of sale did not
have the right of postliminy there,2 because in that war the Greeks
had supported neither side, and hence it was necessary for the captives
to be ransomed in order to be set free. In Homer, too, in more than
one passage we see that those captured in war were sold in places
that were at peace, as Lycaon, Iliad, XXI [lines 35 ff.], and
Eurymedusa, Odyssey, VII [lines 8 ff.].
Pompeius
Festus [on
the word
postlimi-
III. — By postliminy some things return and some things are recovered
The ancient Roman mode of speech had it that free men also
were recovered by postliminy.
Aelius Gallus, in the Terms Which Apply to the Law, Book I, says that by postliminy
there is recovered (for we must adopt this reading) the freeman who has gone from one
state into another, and returns to the same state, according to the law established in
regard to postliminy. The same is true of the slave who has gone from us into the power
of the enemy, and afterwards returns to us and into the power of his former master,
according to the law of postliminy. The same reasoning is applied to a horse, to a mule,
and to a ship in recovery by postliminy (for so I think that with a slight change we may
1 That this was the view of the king of Morocco and Fez, appears from De Thou, Book CXXX
[CXXX. iii]. on the year 1603.
* Valerius Maximus, V. xi. 6 ; Diodorus Siculus, Selections on Embassies, iii. So also the Rhodians
as an act of generosity restored to Athens the Athenian citizens whom they had bought during the
war of Athens with Philip ; Polybius, Selcctions on Embassies, iii.
Chap. IX]
On Postliminy
703
retain these three words which that incomparable student of the Roman law, Jacques
Cujas, thinks should be deleted) as to a slave ; and the same kinds of things, which return
from the enemy to us by postliminy, may return from us to the enemy.
The later Roman jurists, however, with greater clarity have
distinguished two forms of postliminy, according as we ourselves
return, or something is recovered by us.
[Observa-
tions, XI.
xxiii.]
Digest,
XLIX. xv.
14.
IV. — The right of postliminy exists in peace and in war. What is to
be done if it has not been mentioned in time of peace ?
1. We must, further, maintain the view of Tryphoninus, who
says that the right of postliminy [500] is effective both in war
and in peace ; the meaning is slightly different from that with which
Pomponius had said the same thing.
In peace postliminy, unless it is otherwise agreed, exists for
those who have not been conquered by armed force, but caught
by their ill-fortune,1 as those who are found in the land of the enemy
when war has suddenly broken out. For other captives, however,
there is not postliminy in time of peace, unless this was provided
for in the terms of peace 2 (according to the excellent emendation
of the passage of Tryphoninus by the learned Peter Faber, of which
Cujas approves) ; for the reason which is added and the contrasted
clause clearly decide this.
* He made peace, releasing the prisoners, for so it had been
agreed,' says Zonaras. Pomponius says : ' If a prisoner, for whose
return in time of peace a guarantee had been given, remains with
the enemy of his own accord, for him there is subsequently no post-
liminy.' Paul states the matter thus : ' If a prisoner of war has fled
to his home after peace has been made, by postliminy he returns
Digest,
XLIX. xv.
12.
Digest,
XLIX. xv.
5, cited
above.
Semestria,
I. vii.
Vol. III.
Digest,
XLIX. xv.
20.
Digest,
XLIX.xv.
1 See the example in Paruta, On the War in Cyprus, I.
2 See Josephus, Antiquities of the Jews, XIII. ii [XIII. ii. 3]. Polybius mentions agreements
providing for the restoration of captives in the peace with Philip, with the Aetolians, although in
this case with an exception, and with Antiochus ; Selections on Embassies, ix, xxviii and xxxv
[=Histories, XVIII. xliv; XXI. xxx ; XXI. xlv]. Livy [XXXIV. xxxv. 4] furnishes the same
examples, and an additional example in the peace with Nabis.
Zosimus offers several similar instances, as, for example, the peace of Probus with the Burgundians
and the Vandals, which began thus : ' Upon condition that they should restore all the booty and all
the prisoners which they had,' Book I [I. lxviii]. He records a similar peace between Julian and the
Germans [III. ivj, and likewise with the Quadi, who were in Germany, Book III [III. vii].
Ammianus Marcellinus in Book XVII [XVII. x. 3-4] says of Suomarius, king of the Alemanni :
' On bended knees he sought peace, and obtained it, with forgiveness for the past, upon condition
that he should restore our captives.' Shortly afterwards [XVII. xii. 11] he says of the Sarmatians :
4 Upon being ordered to occupy without fear the lands they held, they restored our prisoners.' In
another passage he says the same with regard to another part of the Sarmatians.
In Zonaras there are many such instances. Among others, in the history of Michael, son of
Theophilus, speaking of the Bulgarian king this author says [XVI. vi. 3] : [507] ' He promised to
release his prisoners of war.' Nicetas in Book II [Manuel Comnenus, II. viii] says that all the prisoners
were set free, except the Corinthians and Thebans, men and women.
Sometimes it was agreed that prisoners who were held by the state should be restored, as in
Thucydides, V [V. xviii].
1569.27
3b
XLIX.xv
12.]
704 On the Law of War and Peace [Booklll
to him vvho captured him in the late war, provided that it has
not been agreed in the terms of peace that prisoners should be
restored.'
2. As indicating the reason why the view just stated came to
be held with reference to those who have been captured by valour
in war, Tryphoninus quotes the following from Servius, ' that the
Romans preferred that their citizens should place their hope of
return in military prowess rather than in terms of peace ', for from
[xxii. antiquity they were in truth, as Livy says, a state by no means merciful
to prisoners. But this reason characteristic of the Romans could
not have established the law of nations, though it might have been
among the causes that led the Romans to embrace that law which
had been developed by other nations.
The truer explanation is this, that kings and peoples who under-
take war wish that their reasons for so doing should be believed to
be just, and that, on the other hand, those who bear arms against
them are doing wrong. Now since each party wished this to be
believed, and it was not safe for those who desired to preserve peace
to intervene, peoples at peace were unable to do better than to
accept the outcome as right,1 and also to consider prisoners thus
taken in the act of defending themselves as captured for a just
reason.
3. But the same thing could not be said with regard to those
who were caught [in hostile territory] after war had broken out ;
for in them no desire to injure could be imagined. Nevertheless it
seemed not unfair that while the war lasted they should be detained,
in order to lessen the strength of the enemy ; but when the ending
of the war had been arranged no reason could be offered for not
releasing them. Consequently this was agreed upon, that with
peace such prisoners should always obtain their liberty on the ground
that they were innocent, by admission of the parties ; but that over
the others each should assert what he wished to be considered
his right, except in so far as agreements should prescribe definite
stipulations.
For the same reason neither slaves 2 nor things taken in war
are restored with peace, unless this has been stipulated in agree-
ments, since the victor wishes it to be believed that he had the right
to seek these things. To controvert this principle would in truth
be to make wars spring up from wars.
1 Sce Priscus, Excerpta Legalionibus, xxvm, and Bizarri, on the War between Genoa and Venice
[On the Venelian War], Book II.
1 Totila declared to Pelagius, the deacon whom the Romans had sent to him, that he would
not discuss the question of the restoration of the slaves of the Sicilians, saying that it would be unjust
>C Komans [i.e., Goths] to give up their fellow soldiers to their old masters. The passage is in
,pius,] Gothic War, III [III. xvi].
Chap. IX]
On Postliminy
705
In the light of these considerations it is clear that the argument
in Quintilian on behalf of the Thebans was ingeniously presented,
but not in accordance with the truth, that is, that prisoners are free
if they have returned to their own country, because things won in
war may only be held by the same use of force. We have said enough
with regard to peace.
4. In war men who were free before being captured return
by postliminy ; * but slaves and certain other things are recovered.
[Inst. Or.,
v.x.115.]
V. — When a free man may return by postliminy while war is in progress
A free man returns by postliminy only when he has come to
his own people with the purpose of sharing their fortunes, as the
principle was stated by Tryphoninus. The reason undoubtedly is
that for a slave to become free he must, so to speak, acquire himself,
which is not done unless he wishes it. But it makes no difference
whether a man has been recovered from the enemy by force of arms,2
or has escaped by a ruse, as Florentinus has pointed out. It will
even be sufficient if he has been voluntarily handed over by the
enemy.
What happens if [501] a man comes to his own people after
being sold in trade by the enemy,3 as the custom is ? This question
is discussed by Seneca,4 in the case of the Olynthian who was pur-
chased by Parrhasius. Since a decree had been issued by the Athenians
whereby it was ordered that the Olynthians should be free, he inquires
whether it was provided in the decree that they should be made
free or should be considered free ; the latter of the two interpreta-
tions is more correct.
Digest,
XLIX.xv.
12. § 9, and
5- §3,
cited
above.
Digest,
XLIX. xv.
26.
Code,
VIII. 1. 5.
VI. — What rights a free man returning by fostliminy may recover,
and what he may not recover
1. A free man, moreover, after he has returned to his own
people, not only acquires himself for himself, but also all the posses-
sions, whether corporeal or incorporeal, which he had when the
peoples were at peace. Peoples at peace accept the fact as indicating
a right in the case of the man who has been set free just the same
1 Julian, in his oration Against the False Cynics [Orations, vi=p. 195], says: ' In this way even
the prisoners of war whom we set free would be slaves. But to such the laws grant freedom when
they have returned to us.'
2 As those, who had been captured by the Slavs and were set free by the Huns, likewise in
Procopius, Gothic War, III [III. xiii].
8 As in the same book of Procopius [III. xiv], the young Childubius said : ' Since he had returned
to his own country, for the future he would be a free man in the eyes of the law.' But Leunclavius
[Turkish History, XIV] notes that among the Turks there was formerly no right of postlbiiny for
prisoners of war.
4 Controversies, V. xxxiv [X. v].
3 B2
706
On the Law of War and Peace
[Book III
as in the case of the prisoner, in order that they may show them-
selves fair to both sides. Therefore the proprietorship, which he
who possessed the prisoner by the law of war had over the prisoner's
possessions, was not free from all limitation ; it could in fact cease
against his will, if the prisoner should reach his own country. Con-
sequently, the possessor of the prisoner loses these things just as he
loses the man to whom they belonged.
2. But what if the possessor of the prisoner has alienated the
prisoner's possessions ? Will he, who has his title from the man that
was at the time owner by the law of war, be protected by the law
of nations, or will these things also be recovered ? I am speaking of
the things which were with a people that did not participate in
the war.
It seems clear that we must distinguish between things which
are of such a kind that they may return by postliminy, and those
which are not of that kind. This distinction we shall shortly explain,
so that the things of the former class will seem to have been alienated
with a characteristic cause and under a condition, but the latter
absolutely. By alienated things I understand also things which
have been granted or acknowledged as received.
Digest,
XLIX.xv.
12. §6; 6.
VII. — Rights against afree man returning by postliminy also are restored
Again, just as rights are restored to him who has returned by
postliminy, so also rights are revived against him ; and, as Trypho-
ninus says, such are held just as if he had never been in the power
of the enemy.
Digest,
XI. IX. xv.
17-
[VI. xviii.]
XLIX.xv.
19. | I.
XLIX.xv.
4-
VIII. — Why those who surrender do not have the right of postliminy
To this rule in regard to free men Paul justly adds the following
exception : ' Those who have been conquered in battle and have
surrendered to the enemy do not possess the right of postliminy.'
This is doubtless for the reason that agreements with the enemy are
valid by the law of nations, as we shall say elsewhere, and against
such agreements no right of postliminy holds.
Thus in Gellius those Romans who had been captured by the
Carthaginians say that ' They did not have legal postliminy, since
they were bound by their oath '. Wherefore, as Paul has propcrly
pointed out, there is no postliminy during the period of an armistice.
But Modestinus delivered the opinion that those who are given up
to the enemy, that is without any agreement, return by postliminy.
Chap. IX]
On Postliminy
707
IX. — When a people may have the right of postliminy
1. What we have said in regard to individual persons holds
true, I think, in the case of peoples also ; those who were free may
recover their liberty in case the power of their allies delivers them
from the rule of the enemy. But if the population, which formed
the state, has been dispersed, I think it more correct not to consider
the people as the same, nor to restore their property by postliminy
in accordance with the law of nations, for the reason that a people,
like a ship, obviously perishes by the dissolution of its parts, since its
whole nature consists in perpetual union.
That was, then, not the same state of Saguntum which previously
existed, when this site was restored, eight years later, to the former
inhabitants. It was, again, not the same Thebes, after the Thebans
had been sold into slaverv by Alexander. Hence it is apparent that
what the Thessalians hacf owed the Thebans was not restored to the
Thebans by postliminy, and that for two reasons : first, because it
was a new people ; and, secondly, because Alexander, at the time
when he was their master, was able to alienate this right and did
so. There is a further reason, that a debt is not in the number of
the things which return by postliminy.
2. With what we have said regarding a state [502] agrees
closely the fact that according to the ancient Roman law, by which
the dissolution of marriage was permitted, it was held that the
marriage relation was not restored by postliminy,1 but renewed by
a new agreement.
Digest,
XLIX. xv.
8; 14. §1.
X. — What are the provisions of the municipal law in the case of those
who return by postliminy
1 . From the preceding discussion the nature of postliminy may
be understood according to the law of nations, as regards free men.
But by municipal law that same right, in so far as it affects what is
done within a state, may both be restricted by the addition of excep-
tions and conditions and extended to other interests. Thus, by the
Roman civil law, deserters are excluded from the number of those
who return by postliminy, even the sons of households over whom
apparently the authority of the father, which was peculiar to the
Digest,
XLIX. xv.
19- §§ 4
and 7.
1 Otherwise among Christian people?. Pope Leo wrote to Nicetas, Bishop of Aquileia [Leo the
Great, Letters, clix] : ' So that, just as postliminy is observed in the case of slaves or land, or even
in the case of houses and other property, for those who have been led into captivity and have returned
from captivity former marriages may be re-established, even if the parties have been united to others.'
See Hincmar, De Divortio Lotharii ei Tetbergae, Interrogation xiii, and the reply of Pope Stephen,
chapter xix, in Concilia Galliae, II.
708
On the Law of War and Peace
[Book III
On Ends, I
Demo-
sthei:
Against
Nicostra-
:ii. II
= p. 1249].
Code,
VIII. I.20.
Digest,
XLIX. xv.
15.
Codt,
VIII. I.
13.
Code,
VIII. 1. 7.
= p. 239.]
( = p. 242.]
VIII. I.18.
Quirites, should have been exercised. But Paul says that this was
acceptable, because Roman parents valued the discipline of the
camp above their arTection for their children. This is consistent
with what Cicero says of Manlius, that through his personal grief he
sanctioned the discipline of military authority, in order that he might
have regard for the safety of his fellow citizens, with which he per-
ceived that his own safety was bound up, and that he set the right
of public authority above nature herself and the affection of a father.
The right of postliminy is also in a measure limited by this
provision, which we read was first established by the Athenian laws,
then by those of the Romans, that the person who should be ransomed
from the enemy should serve the one who ransomed him until he
paid back the price.1 But this very provision appears to have been
introduced in the interest of liberty, in order that many might not
be left in the hands of the enemy because the hope of reimbursement
in the sums paid as ransom had been cut orT. This kind of servitude
is in fact mitigated in many ways by the same Roman laws ; and
finally by the law of Justinian it is terminated with five years' service.
On the death of the ransomed the right of recovering the money
also is extinguished, just as it is held to be remitted by the con-
traction of marriage between the ransomer and the ransomed ; and
the right is lost by the prostitution of a ransomed woman. Many
other provisions were established by the Roman law to favour those
who pay ransom, and to punish the next of kin who do not redeem
their relatives.
2. On the other hand, the right of postliminy has been expanded
by the civil law in this, that not only those things which are included
in postliminy by the law of nations, but all things, and all rights,
are treated just as if he who has returned had never been in the
power of the enemy ; and this was also the practice in Attic law.
For, as we read in the fifteenth Oration of Dio of Prusa, a certain
person declared that he was the son of Callias, that he had been taken
prisoner in the defeat at Acanthus, and had been in slavery in Thrace ;
after his return to Athens by postliminy, he claimed the inheritance
of Callias from its possessors, and the only question investigated in
the trial was whether he was really the son of Callias. The same
writer records that, although the Messenians had been in slavery for
a long time, they at length recovered both their liberty and their
land.
Further, the things which were deducted from a property by
usurpation or by liberation, or which seemed to have become extinct
1 The same provision occurs in Charles the Bald, Edictum Pistense, chap. xxxiv [Monumenta
Germanica Hislorica, Leges, II. vol. 11, p. 325].
Chap. IX]
On Postliminv
709
by non-use, are restored by an action for annulment ; for in the
edict concerning the complete reinstatement of persons of age there
is included the man who is in the power of the enemy. This at any
rate comes from the ancient Roman law.
3. The Cornelian Law even consulted the interest of the heirs
of those who had died as prisoners among the enemy, by conserving
their property just as if the captive who did not return was already
dead at the time when he was captured. If you should annul these
civil laws, there is no doubt that as soon as any one had been captured
by the enemy his property would have fallen to those who should
seize it,1 because he who is in the enemy's possession is held to be
non-existent. If he who had been captured returned, he would
recover nothing except those things which have postliminy by the
law of nations. However, the assignment of the goods of prisoners
to the treasury, if there should be no heir, is the effect of a special
Roman law.
[503] We have considered the persons who return ; let us now
consider the things which are recovered.
Dig. IV.
vi. 1. § 1.
Digest,
XLIX.
xiv. 31 ;
xv. 22. § 1.
XI. — How slaves are recovered by postliminy, even those who have run
away ; how those who have been ransomed are recovered
1. Among recoverable possessions are, first, male and female
slaves, even when having been often alienated,2 or after manumission
by the enemy.3 The reason is that it is not possible for one of our
citizens, who is the owner of a slave, to be affected by a manumission
in accordance with the law of the enemy, as Tryphoninus well observes.
But for the recovery of a slave, it is necessary that he be actually held
by his former master, or that he should be easily obtainable. There-
fore, although in the case of other things it is enough for them to
have been brought within the frontier, in the case of a slave this
will not suffice for the right of postliminy, unless the fact is also
known ; for it is the view of Paul that such a slave who is in Rome,
but is hidden, is not yet recovered.
Just as a slave differs in the respect suggested from inanimate
things, so in turn the slave differs from a free man in this, that for
1 See the Visigothic Law, V. iv. 15.
2 But in the Edict of Theodoric [chap. cxlviii] the rule was laid down thus : ' Let slaves or coloni
who have been captured by the enemy, and have returned, be restored to their masters, unless they
have been previously acquired by another by purchase f rom the enemy.' See also Cassiodorus, [Variae,]
III. xliii.
By the Visigothic Law, however, a slave recovered in war is restored to his master, and he who
recovered him receives a third of a fair price for him. If he has been recovered after being sold by the
enemy, he is restored to his master after return of the purchase price and the cost of improvements in
his condition (V. iv. 21).
3 As those set free by Mithridates, who were brought back into slavery ; Appian, Mithridaiic
Wars [ix. 61].
7io
On the Law of War and Peace
[Book III
Digest,
XLIX.
12. §9-
Digest,
XLIX.
19. § 5.
Code,
VIII. 1.
his recovery by postliminy it is not required that he should come
with the intention of adopting our cause. This in fact is required
in the case of the man who is going to recover himself, not in the case
of him who is to be recovered by another ; and, as Sabinus wrote,
' Every one has a full freedom of choice with regard to his own state,
but not in relation to the right of his master.'
2. The Roman law furthermore does not exempt runaway
slaves from the operation of this law of nations. The master recovers
his former right over these also, as Paul teaches us, the intent being
that the exercise of a contrary right should not be so injurious to
him, who always remains a slave, as fraught with damage for his
master. In regard to the general treatment of slaves who are recovered
by the valour of the soldiers, the emperors have stated a principle
which some persons mistakenly apply to all possessions, that ' We
should regard those who have been recovered as not having been
captured, and our soldiers ought to be their defenders, not their
masters \
3. By the Roman law slaves who have been ransomed from the
enemy become forthwith the property of the person who ransoms
them ; but when the price has been paid back they are held to
have been recovered.
To explain these things in greater detail is the business of the
interpreters of the civil law. For some points were changed by
later laws ; and, to induce captured slaves to return, freedom was
offered immediately to those who had broken a limb, and to others
after the lapse of five years, as may be seen in the military laws
collected by Rufus.
XII. — Whcther subjects may be recovered by postliminy
We are more concerned with this question, whether peoples
who were subject to a foreign rule also relapse into their former
relation.
This may be considered in the case that not he to whom the
chief command belonged, but some one of his allies, had delivered
the people from the enemy. In this case I think we must give the
same answer as in the case of slaves, unless it has been otherwise
agreed in the treaty of alliance.
Digest,
\. xv.
20. § 1.
XIII. — Territory is recovered by postliminy
1. Among things recoverable we have first to do with territory
which falls under the right of postliminy. ' It is true ', says Pom-
Chap. IX]
On Postliminy
711
ponius, ' that when the enemy have been expelled from the terri-
tory which they have taken the ownership of it returns to the former
proprietors \
Furthermore, the enemy ought to be considered as expelled
from the time when they are no longer able to approach openly,
as we have explained elsewhere. Thus the Lacedaemonians restored
to the early proprietors * the island of Aegina, which had been
wrested from the Athenians. Justinian and other emperors restored
to the heirs of the old possessors the lands which had been recovered
from the Goths and Vandals, and did not admit against the pro-
prietors those prescriptive rights 2 which the Roman laws had
introduced.
2. The law regarding every right which is connected with the
soil I consider to be the same as that regarding territory. Pomponius
has written that consecrated and holy places, which have been
captured by the enemy, if they have been freed from this misfortune,
are restored to their original condition as though returned by a sort
of postliminy. With this agrees what Cicero, in the passage on the
statues in his speech Against Verres, says of the Diana of Segesta :
' Through the valour of Publius Africanus it recovered its veneration
together with its seat of worship.' With the right of postliminy
Marcianus compares [504] the right by which the ground occupied
by a building is restored to the shore, upon the fall of the building.
Wherefore we shall be obliged to say that the usufruct of land
that has been recovered is restored, following the precedent set by
the response of Pomponius with regard to inundated land. By the
law of Spain, provision has been made that the holdings of counts
and other hereditary jurisdictions return by postliminy. The larger
holdings return without limitation ; the smaller, if they are claimed
within four years after their recovery, with the exception that the
king has the right of retaining a castle lost in war and recovered in
any way at all.
1 That is, those who were of the Lacedaemonian faction. Cf. what has been said above, III. vi. 7.
2 And this in accordance with a law of Honorius, who, although he relinquished Spain to the
Vandals, would not [508] permit a prescription of thirty years to prejudice the proprietors, while
the Vandals were in occupation of it ; as is recorded by Procopius, Vandalic War, I [I. iii]. Valentinian,
in his Novel De Episcopali ludicio, says : ' We have ordained that the rights which were preserved
in perpetuity or for an unlimited number of ages shall be terminated by a limit of thirty years ; with
the exception of the affairs of Africans, who shall prove that they have been subject to the constraint
of the Vandals ; so that in their cases there may be deducted from the allotted thirty years such
time as shall be proven to have been passed under hostile domination.'
In the Council of Seville, cited in Decretum, II. xvi. 4 [II. xvi. 3. 13], we read : ■ Just as by
the law of the state their former possessions are restored to those who have returned by postliminy,
after suffering the cruelty of the barbarians in an enforced captivity.' With this agrees the canon,
Decretals, II. xxvi. 10. See also Cujas, Paratitla on Code, VII. xxxix.
Strabo,
VIII [vi.
16].
Novels,
copius,
Vandalic
War, I
[iii] ; Cu-
jas, Obser-
vations, X
[xii].
Dig. XI.
vii. 36.
Dig. I.
viii. 6.
Digest,
VII. iv.
26.
Constitu-
tions of
France, X.
xxix. 2.
712
On the Law of War and Peace
[Book III
ics,
viii. 37.]
Digest,
XLIX.xv.
2 and 4.
Digest,
XXX. i. 9.
Dig. X. ii.
22 and 23.
Bart
On Dig.,
28; An-
gelus and
Saliceto,
On Code,
VIII
Constitu-
tiones Gal-
licae, XX.
xiii. 24 ;
Comolato
del Mare,
cclxxxvii.
XIV. — The distinction that was formerly observed zvith regard to
movable things
1. With regard to movable things there is a general rule to
the contrary, that they do not return by postliminy but belong
with the spoil ; thus Labeo contrasts such things. Therefore, also,
what has been acquired in trade, wherever it is found, remains the
property of him who bought it, and the former owner has not the
right to reclaim it if it is found among those who are at peace, or
brought within the frontier.
In ancient times we see that things which were of use in war
were excepted from this rule, which the nations seemed to have
sanctioned, in order that the hope of recovery might render men
more zealous in procuring them. In those times the institutions of
very many states were organized for warfare ; wherefore an agree-
ment was easily reached in this matter.
Moreover those things are considered to be of use in war which
we lately cited from Aelius Gallus, but which are more specifically
designated both in Cicero's Topics and in Modestinus. They are
warships and transports, but not yachts and fast boats acquired for
pleasure ; mules, but only such as are pack animals ; horses and mares,
which have been broken to the bit. And these are possessions which
the Romans held were legally disposed of in wills, and entered into
claims for the division of an inheritance.
2. Arms and clothing are indeed of use in war, but they do not
return by postliminy because those who lose arms or clothing in war
are by no means deserving of favour ; in fact such loss was accounted
a disgrace, as is abundantly clear in the historical writings. But in
this respect, it is noted, arms differ from a horse, because a horse
may dash away without fault of his rider. We see, further, that
this distinction of movables was in force in the west, even under
the Goths, down to the time of Boethius. For he, in explaining
Cicero's Topics, seems to speak of this right as one which retained
its force to his own time.
XV. — What is the current law with regard to movable things ?
But in recent times, if not previously, the distinction noted
seems to have been done away with. For those who are familiar
with customs generally record that movable things do not return
by postliminy ; and we see in many places that this has been made
a rule with regard to ships.1
1 Decisiones Genuenses, ci.
Chap. IX]
On Postliminy
713
XVI. — What things may be recovered in such a way as not to need
postliminy
Things whicb, although seized by the enemy, have not yet been
brought within his fortifications, have no need of postliminy, because
by the law of nations they have not yet changed ownership. Also
things which pirates or brigands have taken from us have no need
of postliminy, as Ulpian and Javolenus decided ; the reason is that
the law of nations does not concede to pirates or brigands the power
to change the right of ownership.
Relying upon this principle the Athenians wished to receive
Halonnesus as restored, not as given by Philip, because the pirates
had taken it from them, and Philip had taken it from the pirates.1
So things which have been captured by freebooters may be claimed
wherever they are found, excepting that, as we have elsewhere held,
on the basis of the law of nature, he who has obtained possession of
a thing at his own expense should be reimbursed in the sum which
the owner himself would have been glad to pay for its recovery.
II. x. 9,
above.
XVII. — Charges introduced by municifal law as affecting those subject
to it
Nevertheless a different rule may be established by municipal
law. Thus by [505] the Law of Spain ships captured from pirates
become the property of those who take them from the pirates.2 It
is in fact not unjust that private interests should yield to the public
advantage, especially when the difficulty of recovery is so great. But
such a law will not hinder foreigners from claiming their property.
XVIII. — How fostliminy has been observed among those who were not
enemies
1. That is more surprising, to which the Roman laws bear
witness, that the right of postliminy was effective not only among
enemies, but also between the Romans and foreign peoples. But we
have said elsewhere that such laws were relics of the nomadic age,
in which the usages had dulled the natural social sense which exists
among men. In consequence even among nations which were not
waging a public war there was a certain licence of war among
individuals, proclaimed as it were by the usages themselves. To
prevent this licence from extending to the killing of men, it was
acceptable that the rights of captivity should be introduced among
XXXI.
xxix. 2
Covarru-
vias, On
Sext, V.
ult. 4,
pt. n. § 2,
no. 8.
1 See Philip's very letter in the works of Demosthenes [xii].
2 The Venetians had the same law, as appears from the Letters of Du Fresne de la Canaye, vol. I.
/14
On the Law of War and Peace
[Book III
[I. xl.182.]
[Festus,
on the
word post-
liminium.]
Digest,
XLI.X
Digest,
XLIX.xv.
5. §2.
Observa-
xxiii.
them, and from this it resulted that there was also a place for post-
liminy, on a diflerent basis than with brigands and pirates, because
this use of force led to fair agreements which are usually held in
contempt by brigands and pirates.
2. Formerly it seems to have been a disputed right whether
those from an allied people, who are in servitude among us, return
by postliminy, in case they have made their way home. Thus Cicero
presents the problem, On the Orator, Book I. Aelius Gallus indeed
speaks as follows : ' With peoples that are free, and with peoples
in alliance, and with kings, we have postliminy just as with enemies.'
On the other hand Proculus declares : ' I have no doubt that allied
and free peoples are foreign to us ; there is no postliminy between
us and them.'
3. I think that a distinction should be made between treaties,
in order that, if there were any which were entered into for the sake
of settling or avoiding a public war, these should not for the future
stand in the way of captivity or of postliminy. If, on the contrary,
there were treaties containing this provision, that whoever should
come from one side to the other should be protected in the name of
the state, then with the abolition of captivity postliminy also should
cease. It seems to me that Pomponius indicates this, when he says :
If with any people vve do not have relations of friendship or hospitality, nor a treaty
made for the sake of friendship, they are not indeed enemies ; but whatever of our belong-
ings goes to them becomes theirs, and a free man of our people captured by them becomes
also their slave. It is the same if anything comes to us from them ; and so in this case
also postliminy is recognized.
When Pomponius said a ' treaty for the sake of friendship ', he
showed that there could be other treaties also, in which there is no
right of hospitality or friendship. That by peoples in alliance with
one another are to be understood those who have promised friend-
ship or secure hospitality, is also made abundantly clear by Proculus,
when he adds : ' For what need then is there of postliminy between
us and them, when they in our country retain both their liberty and
the proprietorship of their own possessions as fully as among them-
selves, and we have the same privileges in their country? ' There-
fore what follows in Aelius Gallus, that ' There is no postliminy
with the nations which are under our sway ', as Cujas correctly reads
it, must be supplied with the addition, ' nor with those with whom
we have a treaty establishing friendship '.
Bodin,
DeRepub-
lica, I vii.
XIX. — When the right of postliminy may be enforced at the present day
1. In our times, however, not only among Christians but also
among most Mohammedans, both the right of captivity apart from
Chap. IX] On Postliminy 715
war, and likewise that of postliminy, have disappeared, since the
necessity for either was removed by the restoration of the force of
the relationship which nature has wished to prevail among men.
2. Nevertheless that ancient law of nations could be applied if
there should be an affair with a people so barbarous that without
declaration or cause it should consider it lawful to treat in a hostile
manner all foreigners and their possessions.
While I was writing these words, a judgement to that effect
was rendered in the highest chamber at Paris, under the presidency
[506] of Nicholas of Verdun. The decision held that goods which
had belonged to French citizens, and had been captured by the
Algerians, a people accustomed in their maritime depredations to
attack all others, had changed ownership by the law of war, and
therefore, when recaptured by others, became the property of those
who had recovered them. In the same suit this decision was recorded,
to which we just now referred, that to-day ships are not among the
things which are recovered by postliminy.
CHAPTER X
CAUTIONS IN REGARD TO THINGS WHICH ARE DONE IN AN
UNLAWFUL WAR
III. iv.
[333 f.]
[Inst. II.
xxiii.§ i.]
[Declama-
tions,
cclxxiii.]
[Fasti, I.
249 «•]
Works
[Works
and Days,
192 ff.].
I. — With what meaning a sense of honour may be said toforbid zvhat the
law permits
1. I must retrace my steps, and must deprive those who wage
war of nearly all the privileges which I seemed to grant, yet did not
grant to them. For when I first set out to explain this part of the
law of nations I bore witness that many things are said to be ' lawful '
or ' permissible ' for the reason that they are done with impunity,
in part also because coactive tribunals lend to them their authority ;
things which, nevertheless, either deviate from the rule of right
(whether this has its basis in law strictly so called, or in the admoni-
tions of other virtues), or at any rate may be omitted on higher
grounds and with greater praise among good men.
2. In the Trojan Women of Seneca, when Pyrrhus says :
No law the captive spares, nor punishment restrains,
Agamemnon makes answer :
What law permits, this sense of shame forbids to do.
In this passage the sense of shame signifies not so much a regard for
men and reputation as a regard for what is just and good, or at any
rate for that which is more just and better.
So in the Institutes of Justinian we read : ' Bequests in trust
(Jideicommissa) were so called, because they rested not upon a legal
obligation, but only upon the sense of honour in those who were
asked to take charge of them.' In Quintilian the Father, again :
1 The creditor goes to the surety, without violating his sense of honour,
only in case he is unable to recover from the debtor.' With this
meaning you may often see justice associated with the sense of honour.
[Thus Ovid] :
Not yet had justice fled before men's guilt ;
Last of divinities she left the earth,
And sense of honour in the place of fear
[509] Ruled o'er the people without force.
Hesiod sang :
716
Nowhere a sense of honour, nowhere golden Justice ;
The base assail the better wantonly.
Chap. X] Things which are done in an Unlawful War 717
The sentence of Plato, in the twelfth book of his Lazvs, ' For
Justice is called, and truly called, the virgin daughter of Honour '
(7rap6evo<z yap cuSov? A1/C77 \4yerai re Kal ovtojs eLprjTat), I would
emend by Trdpe&pos, so that the sense would be : ' Justice is called
the councillor of honour, and this has been said with truth.' For
in another place Plato also speaks thus : ' The deity, fearing for
the human race, lest it should utterly perish, endowed men with
a sense of honour and justice, in order that there might be adorn-
ments of cities and bonds of friendship.'
In like manner Plutarch calls 'justice' a ' house-companion of
the sense of honour,' and elsewhere he connects ' sense of honour '
and ' justice '. In Dionysius of Halicarnassus, ' sense of honour and
justice ' are mentioned together. Likewise Josephus also links ' sense
of honour and equity '. Paul the jurist, too, associates the law of
nature and the sense of honour. Moreover Cicero draws the boundary
line between justice and a sense of reverence (verecundia) in this
way, that it is the function of justice not to do violence to men,
that of the sense of reverence not to offend them.
3. The verse which we quoted from Seneca is in complete
agreement with a statement in his philosophical works : ' How
limited the innocence to be innocent merely according to the letter
of the law ? x How much more widely extend the rules of duty
than the rules of law ? How many things are demanded by devotion
to gods, country and kin, by kindness, generosity, justice, and good
faith? Yet all these requirements are outside the statutes of the
law.' Here you see * law ' distinguished from ' justice ', because he
considers as law that which is in force in external judgements.
The same writer elsewhere well illustrates this by taking as an
example the right of the master over slaves : ' In the case of a slave
you must consider, not how much he may be made to sufler with
impunity, but how far such treatment is permitted by the nature
of justice and goodness, which bids us to spare even captives and those
bought for a price.' Then : ' Although all things are permissible
against a slave, yet there is something which the common law of
living things forbids to be permissible against a human being.' In
this passage we must again note the different interpretations of the
term ' to be permissible ', the one external, the other internal.
1 Seneca, On Benefits, V. xxi; says also : ' Many good things are not covered by any law, and
find no form of procedure in court, but yet they are protected by the practice of human society, which
is more potent than any law.'
Quintilian, Institutes of Oratory, III. viii [III. vi. 84], declares : ' For there are certain things
which are not naturally praiseworthy, but are permitted by law, as the provision in the Twelve Tables
that the body of a debtor could be divided among his creditors, a law which public practice repudiates.'
Cicero, On Duties, III [III. xvii. 68], writes : ' For the laws dispose of sharp practices in one way,
and philosophers in another ; the laws in so far as they can apply physical force, but philosophers
in so far as they can apply reason and intelligence.'
On Cle-
mency, I.
xviii.
7i8
On the Law of War and Peace
[Book III
XXVI
[xxxi. 2].
.
iii ;ixvi\
Digest,
XLIX.xv.
19. pr.
Letters,
xxxii
[xxxi.
XXVIII
XXIX. i.
16-17].
Orations,
xv [=p.
242].
[Divine
Institutes,
II. — Tbe principle stated is applied to the things which we said were
permitted by the law of nations
1. Of the same eifect is the distinction which was drawn by
Marcellus in the Roman Senate : ' What I have done does not enter
into the discussion, for the law of war defends me in whatever I did
to the enemy, but what they deserved to suffer ' ; that is, according
to the standard of that which is just and good.
Aristotle approves the same distinction when he is discussing
whether the slavery which originates in war ought to be called just :
6 Certain people, regarding only a part of what is just (for a law is
something just),1 declare that slavery arising through war is just.
But they do not say absolutely just ; for it may happen that the
cause of war was not just.' Similar is the saying of Thucydides in
the speech of the Thebans : ' We do not thus complain regarding
those whom you slew in battle ; for that fate befell them in accord-
ance with a kind of law.'
2. Thus the Roman jurists themselves at times characterize as
a wrong what they often define as the right of captivity ; and they
contrast it with natural right. Seneca, having in mind what often
occurs, says that the name of slave has sprung from a wrong. In
Livy also the Italians, who retained the things which they had taken
in war from the Syracusans, are called stubborn in retaining their
wrongful gains. Dio of Prusa, having said that those captured in
war recovered their liberty if they returned to their own people,
[510] adds, ' just as those who were wrongfully in servitude '.
Lactantius,2 in speaking of philosophers, says : ' When they are
discussing the duties that belong to the military life their whole
argument is adapted not to justice, nor to true virtue, but to this
life and to the practice of states.' Shortly after, he says that wrongs
have been legally inflicted by the Romans.
III. — What is done hy reason of an unjust war is unjust from the point
of view of moral injustice
In the first place, then, we say that if the cause of a war should
be unjust, even if the war should have been undertaken in a lawful
1 Seneca, To Helvia, vi [On Consolation, vii], says : ' Some have acquired for themselves by force of
arms a right over territory belonging to others.' There seems to be a conflict between ' right ' and
'belonging to others'. But they may be reconciled, as the text here shows. Consult what is above
in III.
: lowever, Augustine in his fourth letter, which is addressed to Marcellinus [Lellers, cxxxviii. 14],
writes : ' And therefore, if this earthly commonwealth should observe the teachings of Christ, even wars
would not be waged without kindness.' In dealing with the diverse practices of the Church the lame
writer says (cf. Decretum, II. xxiii. 1.6]: * Among the true worshippers of God even wars are brought
to a state of peace.'
Chap. X] Things which are done in an Unlawful War 719
way, all acts which arise therefrom are unjust from the point of view
of moral injustice (interna iniustitia), In consequence the persons
who knowingly perform such acts, or co-operate in them, are to be
considered of the number of those who cannot reach the Kingdom
of Heaven without repentance. True repentance, again, if time and
means are adequate, absolutely requires that he who inflicted the
wrong, whether by killing, by destroying property, or by taking
booty, should make good the wrong done.1
Thus God says He is not pleased with the fasting of those who
held prisoners that had been wrongfully captured 2 ; and the king
of Nineveh, in proclaiming a public mourning, ordered that men
should cleanse their hands of plunder, being led by nature to recognize
the fact that, without such restitution, repentance would be false
and in vain. We see that this is the opinion not merely of Jews 3
and Christians, but also of Mohammedans.4
IV. — Who are bound to make restitution, and to what extent
Furthermore, according to the principles which in general terms
we have elsewhere set forth, those persons are bound to make restitu-
tion who have brought about the war, either by the exercise of their
power, or through their advice. Their accountability concerns all
those things, of course, which ordinarily follow in the train of war ;
and even unusual things, if they have ordered or advised any such
thing, or have failed to prevent it when they might have done so.
Thus also generals are responsible for the things which have
been done while they were in command ; and all the soldiers that
have participated in some common act, as the burning of a city, are
responsible for the total damage. In the case of separate acts each
is responsible for the loss of which he was the sole cause, or at any
rate was one of the causes.
1 Cor., vi.
10.
Jonah, ii.
10 [iii. 8].
Precepts of
the Law,
Precepts
Bidding,
16.
Sylvester,
word
bellum, i,
nos. 10, 11
and 12 ;
Covaxru-
vias, On
Sext, V.
ult. 4, pt.
11, § 2, no.
8; Lessius,
II. xiii,
dub. 4.
Add Dig.
XLVII. ii.
21. §9.
V.' — Whether things taken in an unjust war are to be restored by him
who took them
1. I should not think that we ought to admit the exception,
which some introduce with regard to those who furnish their services
1 Numbers, v. 6 [and 7]. Jerome, To Rusticus, says : ' The pronouncement of vengeance is not
cancelled unless the whole is restored.' Augustine, in a letter to Macedonius, which is liv [Letters, cliii.
20], writes : ' If the property of another, for the sake of which the sin was committed, can be returned,
and it is not returned, repentance is not felt but pretended.' This is cited by Gratian, in the Decretum,
II. xi. 6 [II. xiv. 6. 1].
2 There is a significant passage in Isaiah, lviii. 5, 6 and 7. You find it in Greek in Justin Martyr,
Dialogue with Trypho [xv].
3 See the penitential canons of Moses Maimonides, ii. 2. Also Moses de Kotzi, Precepts Bidding, 16.
4 See Leunclavius, Turkish History, V and XVII.
Sylvester,
loc. cit.,
no. 10.
1569.27
3c
720
On the Law of War and Peace
[Book III
Vazquez,
Contt
siae Illus-
tres, I. ix.
17 ;
lina, disp.
vero.
\ III
See above,
II. xi.
to others, in case some blame should attach to them. Fault without
evil intent is in fact sufficient to warrant restitution. There are
some who seem to think that things captured in war, even if there
not a just cause for the war, should not be restored. The reason
they allege is that those who fight with one another, in entering
upon war, are understood to have given these things to the captors.
But no one is presumed to risk his property rashly ; and war of itself
is far removed from the nature of contracts.
However, in order to give to peoples that were at peace a certain
rule to follow, that they might avoid being involved in war against
their will, it was sufficient to introduce the idea of legal ownership
(externum dominium) of which we have spoken, which may exist along
with the moral obligation (interna obligatio) of restitution. The
writers themselves seem to enunciate this in connexion with the law
of the captivity of persons. Thus in Livy the Samnites say : ' We
have restored the property of the enemy taken in the spoil, which
seemed to be ours by the law of war ' ; * seemed ', he says,
because that war had been unjust, as the Samnites had previously
acknowledged.
2. A not unlike case is that arising from a contract entered
into without fraud, in which there is an inequality. In such a case
by universal common law there arises a power of some sort to compel
him who has made the contract to fulfil his agreements ; neverthe-
less, in accordance with the duty of an upright and honourable man,
he who has contracted for more than is right is none the less bound
to reduce the transaction to an equality.
Sec above,
II. ix.
VI. v.
VI. — Wheiher ihings taken in an unjust war are to be restored by him
who holds them
I. But he who has not inflicted the loss himself, or has inflicted
loss without any fault of his own, and has in his possession a thing
taken from another in an unlawful war, is under obligation to return
it, because there is no naturally just reason why the other should
go without it [511] — neither his consent, his deserving of evil, nor
recompense. In Valerius Maximus there is a story which bears on
this point :
After Publius Claudius had sold at auction the people of Camerina, captured under
his leadership and auspices (he says), the Roman people, although they saw that the
treasury had been enriched with money and their land increased by an accession of
territory, nevertheless with the greatest care sought out and redeemed these people,
and assigned to them a site on the Aventine to dwell upon, and restored their estates,1
Antony compelled the Tyrians [512] to restore all that they held belonging to the Jews.
He ordered that the men whom they had sold should be set free, and that goods should be restored
Chap. X] Things which are done in an Unlawful War 721
because it seemed that the good faith of the commander in this exploit was not beyond
reproach.
In like manner by a decree of the Romans the Phocaeans received
back both their freedom as a state and the lands which had been
taken from them. Afterward the Ligurians,1 who had been sold by
Marcus Pompilius, recovered their libertv through the return of the
purchase price to their buyers, and care was taken to restore their
possessions. The Senate passed a similar decree with regard to the
people of Abdera, adding as a reason that an unlawful war had been
waged against them.
2. Still, in accordance with the principles which have been
elsewhere explained, it will be possible, if the person who holds the
thing has incurred any expense or labour, to deduct as much as the
thing was worth to the owner, to recover the possession of which he
had despaired. But if the possessor of the thing has, through no
fault of his own, consumed or alienated it, he will not be held respon-
sible except in so far as it may be held that he has been thereby
enriched.
Livv,
XXVIII
[XXXVIII.
xxxix. 12].
Livy,
XLII
[viii.7].
[Livy,]
LXIII
[XLIILiv.
13].
[II. x. 9.]
to their owners ; Josephus, Antiquities of ihe Jews, XIV [XIV. xii. 5]. To the Parthians Macrinus
restored the prisoners and booty, because there had been no reason for the Romans breaking the
peace ; Herodian, Book XIV, end [IV. xv. 6]. The Turk Mahomet ordered the liberation of those
who had been in the city of St. Mary in Achaia ; Chalcocondylas, Book IX [ = p. 479, ed. Bekker].
1 See Diodorus Siculus, Excerpla Peiresciana [p. 298].
3C 2
CHAPTER XI
MODERATION WITH RESPECT TO THE RIGHT OF KILLING IN
A LAWFUL WAR
Lucan
[Pharsalia,
L 349].
On Duties,
33]-
On Duties,
iii.
26].
OnCU-
mency, II.
iv.
[i=P. 94
a.]
From the
Pontus,
IX I.viii.
19 f.]-
[Plataic,
viii = p.
298 B.j
I. — In a lawful zvar certain acts are devoid of ntoral justice ; a condition
which is explained
1. Not even in a lawful war ought we to admit that which is
said in the line,
He, who refuses what is just, yields all.
Cicero's point of view is better : ' There are certain duties which
must be performed even toward those from whom you have received
an injury. There is in fact a limit to vengeance and to punishment.' l
The same writer praises the ancient days of Rome, when the issues
of wars were either mild or in accordance with necessity.
Seneca calls those persons cruel who ' have a reason for punish-
ing, but observe no limit \ Aristides, in his second speech On Leuctra9
says : ' Men may, men may indeed be unjust in avenging them-
selves, if they carry vengeance beyond measure. He, who in punish-
ing goes so far as to do what is unjust, becomes a second wrongdoer.'
Thus, in the judgement of Ovid, a certain king,
Avenging himself to excess,
And slaughtering the guilty, guilty himself became.
2. In a speech of Isocrates the Plataeans ask, ' Whether it is
just to exact so severe and unjust penalties for so trivial wrong-
1 [5253 See whathasbeensaidabove,II.xx.2 and 28,andthepassagesofAugustine,which wehave
just cited [on III. x. 2. 2], on the benevolence of Christians even in warfare. Aristotle, Politics, V. vi,
relates penalties harsher than was just, which ' as a consequence of partisan zeal ' were exacted at
Thebes and Heraclea. Thucydides, III [III. lxxxii], mentions ' punishments greater than was just '.
Tacitus, Annals, III [III. xxviii], says : * Pompey did more harm with his remedies than did the
wTongs which he tried to correct.' The same writer m the same book [chap. xxiv] blames Augustus
because, in his punishment of adultery, he transgressed ancestral clemency and his own laws. Juvenal
[Satires, x. 314 ff.] writes :
Sometimes, again, resentment more exacts
Than any law to it concedes.
Quintilian declares [Declamations, VI. x] : ' It is only from the extreme parricide that punishment
is exacted beyond human measure.' The Emperor Marcus [Aurelius] Antoninus, according to Vulcacius
in the Life of Avidius Cassius [chap. xi], said : ' I shall write to the senate to prevent any too serious
proscription or too cruel punishment.' Ausonius said [Cupido Cruci Affixus, II. 93, 94] :
And greater than his crime
His punishment appeared.
Ammianus, XXVI [XXVI. x. 6], writes : ' Vengeance was meted out to many more bitterly than
their errors or their crimes demanded.' There is a similar passage in Agathias, Book III [IV. vi].
722
Chap.xi] The Right of Killing in a Lawful War
723
doings ? ' The same Aristides, whom we have cited above, in his
second oration On Peace, says : ' Do not merely consider the
causes for which you are going to exact punishment, but also who
they are f rom whom the punishment is to be exacted, [513] who we
ourselves are, and what is the just limit of punishments.' Minos is
praised in Propertius because,
Although a victor, just to the foe he was ; *
and also by Ovid :
Lawgiver most upright,
He laws imposed upon his conquered foes.
[=P-77A.]
[Elegies,
III. xix.
27 f-]
[Metatnor-
phoses,
VIII. 101
f.]
II. — Who may be killed in accordance zvith moral justice
When it is just to kill — for this must be our starting point — in
a lawful war in accordance with moral justice (iustitia interna) and
when it is not just to do so, may be understood from the explanations
which were given by us in the first chapter of this book.
Now a person is killed either intentionally or unintentionally.
No one can justly be killed intentionally, except as a just penalty or
in case we are able in no other way to protect our life and property ;
although the killing of a man on account of transitory things, even
if it is not at variance with justice in a strict sense, nevertheless is
not in harmony with the law of love. However that punishment
may be just, it is necessary that he who is killed shall himself have
done wrong, and in a matter punishable with the penalty of death
on the decision of a fair judge. But we shall here say less on this
point, because we think that what needs to be known has been suffi-
ciently set forth in the chapter on punishments.
Victoria,
On the Law
of War,
nos. 36
and 45.
III. — No one may rightly be killed because of his ill-fortune ; for example,
those who take sides under compulsion
1. Previously, in discussing suppliants — for there are sup-
pliants in war as well as in peace — we distinguished ' ill-fortune '
(aTV)(7]iJLa) and ' wrong ' (dSiV^/xa). Gylippus, in the passage of
Diodorus Siculus which we then quoted in part, asks in which
class the Athenians should be placed, in that of the unfortunate or
that of the unjust. He declares that they cannot be regarded as
victims of ill-fortune, seeing that, of their own accord, and unpro-
voked by any wrong, they had waged war upon the Syracusans. He
[II. xxi.
5.1.]
[XIII.
xxix.]
1 Ovid, Tristia, I. viii [I. ix. 35]:
Even to the wretch is justice due, and toward a foe
'Tis praised.
-
On the Law of War and Peace
[Book III
XXVI
XXVII.
xvii. 13].
For
Quintius
[ii. 6].
[ii. 5-]
xxi ;.xii.
20].
concludes that, since of their own initiative they had undertaken the
war, they must also in their own persons endure the evils of the war.
An example of the victims of ill-fortune are those who are in
the ranks of the enemy without hostile intent, as the Athenians were
in the time of Mithridates. Of these Velleius Paterculus speaks
thus :
If any one blames the Athenians for this period of rebellion, when Athens was stormed
by Sulla, he is indeed ignorant both of the truth and of antiquity. So steadfast was thc
loyalty of the Athenians to the Romans, that at all times and in every matter the Romans
declared that whatever was carricd out in good faith was done with Attic loyahy. But
at that time, oppressed by the forces of Mithridates, the men of Athens were in a most
pitiable condition. While they were in the grasp of the enemy, they were besieged
by their friends, and they had their hearts outside the walls while their bodies, by con-
straint of necessity, were within.
The end of the quotation may seem to have been adapted from
Livy ; in this author the Spaniard Indibil says that, although his body
was with the Carthaginians, his heart was with the Romans.
2. * Beyond doubt ', as Cicero says, ' all men whose lives are
placed in the power of another more often think what he, under
whose authority and sway they are, is able to do, than what he ought
to do.' The same author, in his speech For Ligarius, declares : ' There
is a third time, when he remained in Africa after the arrival of Varus ;
but if that is criminal, it is a crime of necessity, not of will.' The
principle was applied by Julian in the case of the Aquileians, as we
learn from Ammianus. This author, after recounting the punish-
ment of a few persons, adds : ' All the rest departed unharmed ;
necessity, not intention,1 had driven them into the madness of
strife.'
1 Shortly after he adds : ' For so the mild and kindly emperor, considering what was fair, had
decided.' Thucydides, Book III [III. xxxix], in the speech of Cleon, says : ' I pardon those who
deserted us under pressure from the enemy.' This is called a consideration of extreme necessity by
Paul, in his Sentenliae, V. i [V. i. 1] ; for surely, as Synesius says, ' Necessity is something strong and
violent.' Juvenal says of the Calagurritani [Satires, xv. 103 f.] :
For who of men or gods forgiveness would refuse
To men who had such dire and dreadful sufferings endured?
On the necessity imposed by famine, see Cassiodorus, [Variae,] IX. xiii. Pertinax says of Laetus
and others : ' They obeyed Commodus unwillingly, but, when they had the opportunity, they revealed
what they had always wished ' [Capitolinus, Life of Pertinax, v]. Cassius Clemens in Xiphilinus's
narrative of Severus [LXXIV. ix] declares : ' I knew neither you nor Niger ; but, being left in the
which he had seized, I did what was necessary ; I obeyed the actual ruler, not with the intention
r upon you, but to drive out Julian.' When Aurelian entered Antioch, where many had
• ith Zenobia, he issued an edict ' attributing what had transpired rather to the necessity imposed
< rsons than to their real desires' [Zosimus, I. li].
. Vandalic War, I [I. xx], Belisarius says : ' For all the Africans were subject to the
ncir will.' In the same writer, Golhic IJV/r, III |III. vii], Totila says to the Neapdi-
tans that he knows that they have been unwillingly subject to the enemy. Moreover, Nkcl
iiistory, in speakin^ of [526] Iknry, the brother of Boldwin, writes [Urbs
' the inhaJ he city be slaughtered, as though they were
or sheep, ai who were being put to death, and particularly such as had yielded
to the Blachi under constraint and not by persuasion, and who had not voluntarily obeyed them.'
Chap.Xl] The Right of Killing in a Lawful War
725
On the passage of Thucydides regarding the Corcyraean prisoners
who had been sold, an ancient commentator remarks : ' He reveals
a clemency worthy of the Greek character ; for it is cruel to kill
prisoners after a battle, especially slaves, who do not wage war of
their own will.' In the speech of Isocrates, already mentioned, the
Plataeans assert : [514] ' We served them ' (the Lacedaemonians)
' not willingly, but under compulsion.' The same writer says of
others of the Greeks : ' These were compelled to follow their side '
(that of the Lacedaemonians) ' in body, but in spirit they were with
us.' Herodotus had previously said of the Phocians : ' They sided
with the Medes, not willingly, but by force of necessity.'
As Arrian relates, Alexander spared the Zelites ' because they
had been compelled to serve on the side of the barbarians '. In
Diodorus, Nicolaus of Syracuse says in his speech on behalf of the
prisoners : ' The allies are compelled to take the field by the power
of those who have authority over them ; therefore, as it is fair to
punish those who do wrong with intention, so it is right to pardon
those who do wrong against their will.' Similarly, in Livy the Syra-
cusans, in clearing themselves before the Romans, say that they had
broken the peace because they were confused by fear and treachery.
For a like reason Antigonus declared that he had been at war with
Cleomenes, not with the Spartans.
I [lv].
[Plataic,
xii = p.299
A.]
IX [xvii].
I [xvii].
XIII
[xxvii].
XXV
[xxix. 3].
Justin,
XXVIII
[iv. 13.]
IV. — No one may rightly be killed on account of a fault that is inter-
mediate between ill-fortune and deceit ; the nature of such a fault
is explained
1. But it must be observed that between absolute wrong and
unmitigated ill-fortune a mean may often intervene which is com-
posed, as it were, of both elements. In such a case the action cannot
be called purely that of a man having knowledge and intent, nor
purely that of a man not having knowledge or acting against his will.
2. To this class of actions Aristotle applied the term ' fault '
(ajjidpTrjjjLa), which may be rendered in Latin by culpa. Thus, in the
fifth book of the Ethics, the tenth chapter, he speaks as follows :
Of those things which we do of our own accord, some we do deliberately, others
without premeditation. Those are said to be done deliberately which are done after
a certain previous mental consideration ; what is done otherwise is done without pre-
meditation. Since, therefore, in human intercourse the infliction of injury may occur
in three ways, that which proceeds from ignorance is called a mistake ; as when a person
has done something not against him whom he had in mind, or has done what he did
not have in mind, or not in the way he thought, or not with the expected result ; as if
some one thought that he was striking not with this instrument, nor this man, nor for
this cause, but there happened what he had not intended. An example would be if
a man wished to prick, not to wound, or not to do it to this man, or not in this way.
[Rhetoric,
I. xiii.]
726 On the Law of War and Peace [Booklll
Now when the hurt is done contrary to expectation it will be a mishap. But if
the injury could have been in any way expected, or foreseen, and yet is not inflicted
with evil intent, there will still be a degree of fault ; for he is very near to a fault who
has in himself the origin of the action, while he is unfortunate if the origin is outside
of him. Whenever a person acts with full consciousness of what he does, yet not after
deliberation, we must admit the presence of wrong, as in the acts which men are wont
to commit under the influence of anger and similar natural or unavoidable emotions.
For those who inflict injury when stirred by anger, and admit their fault, are not cleared
from wrong, but yet they are not said to be unjust or wicked. But if any one commits
the same act deliberately he will rightly be styled wicked and unjust.
3. Consequently, what is done under the influence of anger is correctly held not to
have been done with premeditation. For it is not he who does something from anger,
but he who has caused the anger, that started the trouble. Hence it often happens that
in trials of this sort the inquiry is directed not to the facts but to other rights of the
parties ; for anger arises from that which any one thinks has been wrongfully done to
him. Therefore the question under discussion is not whether this or that has been done,
as in dealing with contracts — for in the case of a contract, unless there has been forget-
fulness, the one of the two parties who has not fulfilled his obligation is clearly in the
wrong — but the purpose is to discover whether what has been done has been done
justly.
Now a person who first plotted treachery did nothing in ignorance ; wherefore it
is not strange if the one should think that he has been wronged, and the other should
not think so. Nevertheless, it is possible that he who in turn inflicts an injury on such
a ground should be considered unjust, particularly if he exceeds the rule of equality
and proportion in his reprisal» Therefore he is just who acts justly from deliberate
purpose, although any one may act justly [515] if he merely acts voluntarily, without
deliberation.
4. But of the things which are not done on the spur of the moment,some are deserving
of pardon, and others not. Deserving of pardon are those which are not only done by
ignorant persons, but also done in consequence of their ignorance.1 If something is
done by ignorant persons, yet not because of their ignorance, but from such a diseased
mental state as goes beyond the common limits of human nature, it is not deserving of
your pardon.
This passage, which is truly notable and has been much used,
I have rendered into Latin in its entirety, because in most cases it
is not correctly translated and therefore not adequately understood.
OnthtNi- 5, In interpreting this passage Michael of Ephesus gives as an
ftkirt example of that which could not have been expected the case of
vn.iL 0ne who injured his father when opening a door, and of one who
wounded somebody when training himself in throwing the javelin
in a deserted spot. As an example of what could have been foreseen,
but happens without malice, is the case of him who has thrown his
javelin on a public road. The same writer gives as an example of
what is done under necessity the case of him who is compelled to do
something by hunger or thirst ; of what is done from natural emotions
are cases of love, grief, fear. He says that something is done through
1 Dionysius of Halicarnassus, I [I. lviii], says : ' Everything that is not done voluntarily is worthy
of pardon.' And Procopius, Gothic War, III [III. ix] : ' If any persons have caused trouble to others,
either because they have been under the domination of ignorance, or by reason of some forgetfulness,
it is right that those very persons who have suffered the mjuries should grant them forgiveness.'
Chap.xi] The Right of Killing in a Lawful War
727
ignorance when one is ignorant of a fact, as if some one should not
know that a woman is married. Something is done by one who is
ignorant, but not through ignorance, when one is ignorant of the
law. However, to be ignorant of the law is at times pardonable, at
times unpardonable ; and this agrees very well with the sayings of
the jurists.
A passage not unlike this Aristotle himself has in his book on the
art of oratory : ' Justice demands that we should not treat alike
wrongs and faults, nor faults and misfortunes. Now misfortunes are
things which could not have been foreseen, and are not committed
with evil intent ; faults, things which could have been foreseen, yet
are not done with evil intent ; wrongs, things done purposely and
with evil intent.' The ancients also noted these three things, and in
the verse of Homer on Achilles, in the last book of the Iliad, we
read :
Not ignorant is his mind, nor evil, nor imprudent.
6. Marcianus makes a similar division :
Men do wrong either purposely, or on impulse, or by accident. Robbers, who form
a band, do wrong purposely ; those who resort to blows or to weapons when intoxicated
do wrong on impulse ; and when in hunting a missile cast at a wild beast kills a man
the wrong is done by accident.
The two former classes of wrongs, those done purposely and
those done on impulse, are distinguished by Cicero in the following
manner : ' But in every act of injustice it is of the greatest moment
whether the wrong is done from some mental excitement, which is
usually brief and temporary, or designedly and upon reflection.1
For what happens from some sudden impulse is less serious than what
is inflicted after meditation and preparation.' Philo,2 moreover, in
his interpretation of the Sfecial Lazvs, speaks thus : ' The crime is
lessened by half where it has not been preceded by long deliberation.'
7. In this class are, in particular, those things which necessity,
if it does not justify them, at least excuses.3 In fact, as Demosthenes
Digest,
XXII. vi.
Code, I.
viii.
[XXIV.
157 and
186.]
Digest,
XLVIII.
xix. 11
[§2].
1 Seneca, On Anger, I. xvi [I. xix], says : ' He frequently discharges [the culprits] if he perceives
that their wickedness does not dwell in the depths, as they say, of the heart, but on the surface.' And
then : ' Sometimes he punishes great crimes more leniently than lesser ones, if the great crimes have
been committed from error and not from cruelty, while in the lesser crimes there is ingrained cunning,
both secret and open.'
The same author says also: 'A crime will not affect people in the same way in the case of two
persons if the one has done wrong through carelessness, and the other has laid plans for his guilty deed.'
2 On Special Laws, II [III. xvii].
3 Add what is above in II. xx. 29, and in this chapter, III. xi. 3, above. In Thucydides, Book III
[III. xxxii], the Samians said to Alcidas the Lacedaemonian, when he put to death the Chian prisoners,
that ' he did not speak the truth in saying that he had come to set Greece free, seeing that he put to
death men who did not actively oppose him, and were not hostile in spirit, who were in fact allies of the
Athenians, but had been driven to that course by necessity '.
Chrysostom, On Providence, V, says : ' Private enemies know how to pardon privaLe enemies,
and public enemies public enemies, whenever these commit some wrong, however serious, against them
728
On the Law of War and Peace
[Book III
[xxiii.148
= pp. 668-
9]
[xlv. 67
= p. I :
IV. xcviii.]
VII xx.
VIII i.
I •
[Porphvrv,
OnAb-
staining,
III. xviii.]
[=P- 145
c.]
? of
the So-
phists, II.
xv. 2.]
Eth.,
VII. xi.]
JtlS,
vii=p.93.]
says, Against Aristocrates : ' Impulses arising from necessity prevent
deliberation regarding that which ought or ought not to be done.
YVherefore these actions must not be judged with too much strict-
ness by those who would judge fairly.' This view is expressed at even
greater length by the same orator in his speech on false testimony,
Against Stefhanus. Thucydides, Book IV, says :
Wc may wcll believe that with [516] deity also there is pardon ready1 for those
who do wrong under the constraint of war or some similar necessity. For the altars
of the gods are open as a refuge for unintentional faults ; and the term injustice is applied
to those who are wicked of their own volition, not to those who are driven by extremity
to desperate deeds.
In Livy the people of Caere say to the Romans : ' They should
not term counsel what should be called compulsion and necessity.'
Justin writes : * The act of the Phocians, although it was condemned
by everybody on the ground of sacrilege, nevertheless aroused greater
animosity toward the Thebans, who had reduced them to this
extremity, than toward themselves.' Similarly, in the opinion of
Isocrates, the person who, to save his life, commits an act of plunder,
' has necessity as a cloak for his wrongdoing \ Aristides, in his
second speech On Leuctra, says : J Hard times give some excuse to
those who revolt.'
Regarding the Messenians who had been accused of not having
received the exiles from Athens, Philostratus writes as follows :
' Their defence rests on a request for pardon ; their excuse is
Alexander, and the fear of him which was felt by every part of
Greece.' Such is the man whom Aristotle describes as ' half bad,
but not unjust ; for he plotted no evil \2
In his praises of the Emperor Valens, Themistius applies these
distinctions to the requirement of our subject as follows :
You have distinguished between wrong, error, and misfortune.3 Although you are
not learning the words of Plato, nor perusing Aristotle, nevertheless in fact you are
following their precepts.4 For you did not hold that equal punishment was deserved
unwillingly and contrary to their own desires.' In Agathias, III [IV. xx], the Misimiani declared that
' they were not altogether unworthy to be spared and pardoned, when, after having suffered a multitude
of wrongs, they had consequently been impelled to take revenge with true barbaric vehemence '.
1 iJeuteronomy, xxii. 26 ; Moses Maimonides, Guide of the Perplexed, III. xli.
* ' On this charge Cleon attacks the cause of the Mityleneans, in Tluicydides, III [III. xl] : ' They
did not injure us unwillingly, but they plotted against us purposely. That alone is deserving of pardon
which one does against his will.' Philo, in his book De Constitutione Principis [xiiij, says : ' If he must
ed to take vengeance, he knows how to distinguish between those who lead a life of intrigue
and those who are of a far different spirit. For to proceed to slaughter all, even those who have
committed the least sins [or ncne at allj, is characteristic of a fierce and savage mind.'
1 C527] Seneca, Natural Queslions, II. xliv, where he discusses thunderbolts, says : ' They
! to wam those, whose duty it is to thunder against the sins of men, that all things are not to be
struckin thesameway ; t tobe demolished, some shattered and leparated, ainl ftome warned.'
h a one was Trajan, one of the notable Roman emperofl : ' Hc «U DOt niaster of that exact
learning which is expressecl in words, but its content he both knew and practised ' ; Xiphilinus [LXVIII.
:an [I. ii. 4] writes of Marcus Aurelius : ' He was the only one of the emperors to reveal
Chap. XI] The Right of Killing in a Lawful War
729
by those who had advocated war from the first, those who were later caught in the rush
to arms, and those who submitted to him who seemed already to be master of the situa-
tion ; but the first you condemned, the second you reproved, and the last you pitied.
8. The same author, in another connexion, expresses the desire
that an emperor in his youth should learn, ' What is the difference
between misfortune, error, and wrong ; and how a king should pity
the first, correct the second, and visit with vengeance the last alone.'
Thus, in Josephus, Titus punishes the single leader in a criminal
act * in reality ', and his following • in speech ', with mere verbal
castigation.
Mere misfortunes neither deserve punishment nor create a
liability to restoration of damage. Unjust actions do both. Fault,
lying between the two, although it renders the responsible party
liable for restitution, yet often does not deserve punishment, especially
capital punishment. To this the lines of Valerius Flaccus are
applicable :
If fortune cruel, kin to fault, o'ertakes
Those ill-starred ones whose hands are stained with blood
Against their will, their conscience vexes them
In divers ways, and in their idle hours
Their deeds torment them.
[ix=p.
123.]
Jewish
War V
[iii. 5J.
[III. 39i ff-
V. — Those who are resfonsible for a war are to be distinguished from
those who follow them
The counsel of Themistius, who warns us that we must dis-
tinguish between those who were responsible for a war x and those
who followed the leadership of others, is supported by numerous
historical examples. Herodotus relates that the Greeks exacted
punishment from those who instigated the Thebans to desert to the
Medes. So too, as Livy relates, the leaders of the revolt of Ardea
were beheaded. In the same author, Valerius Levinus, ' after the
capture of Agrigentum, scourged and executed the leaders, [517]
but sold the rest of the people and the booty '. In another passage
Livy says : ' The surrender of Atella and Calasia was accepted ;
and there also those who had been in control were punished.' In
still another passage : f Since those responsible for the revolt have
received the punishment they deserved from the immortal gods and
from you, conscript Fathers, what do you wish should be done with
the innocent populace ? ' 'At length they were pardoned, and were
IX
[lxxxviii].
IV [x. 6].
XXVI [xl.
13].
[XXVI.
xvi. 5.]
[VIII. :
11.]
his wisdom, not by words or the knowledge of doctrines, but by sound morality and a life of moderation.'
Of Macrinus, Xiphilinus [LXXVIII. xi. 2] writes : ' His conscientiousness in the execution of the laws
surpassed the accuracy of his knowledge of them.' Grant, 0 Lord, such princes to our time !
1 See Gail, De Pace Publica, II [II. ix], no. 18.
730
On the Law of War and Peace
[Book III
XXVIII
[Sup-
pliants,
878 ff.]
III
[xxxvi].
[xxi. x ;
granted citizenship, with the purpose ', no doubt, as he elsewhere
. ' that the punishment might remain where the guilt arose.'
In Euripides, Eteocles the Argive is praised because —
When he was judge, the culprit bore the blame,
And not his native city, which ofttimes
Bears the reproach for misdeeds of the ruler.
The Athenians, according to Thucydides, repented of their decree
against the inhabitants of Mitylene, ' that they should put to death
the whole city rather than merely the instigators of the revolt '.
Diodorus relates that Demetrius, after taking Thebes, executed only
the ten persons responsible for its defection.
ria,
On the Law
no. 59.
II xvii.
25].
On Cle-
mency, II.
vii.
VII >x. 2].
[Appian,
Syrian
Wars, iv.
[= P- 135
BC.]
[I.xi.35.]
[Plutarch,
Demetrxus,
v= p. 891
vi.4].
VI. — With regard to those who are responsible for a war we must dis-
tinguish between causes which may be and those which may not be
afproved
1. Further, in considering those who are responsible for a war,
we must distinguish between the causes of their action ; for there
are some causes which are not indeed just, but still are such that
they may deceive persons who are by no means wicked. The author
of the Ad Herennium suggests this as a perfectly equitable reason for
pardoning : when any one has done wrong not from hatred or cruelty,
but moved by a sense of duty and righteous zeal. Seneca's wise man
' will dismiss his enemies safe and sound, at times even^with praise,
if they have taken the field on honourable grounds, on behalf of
loyalty, a treaty obligation, or liberty '.
In Livy the people of Caere seek pardon for their error * because
they gave aid to their kinsmen. The Phocians, Chalcidians, and
others, who had supported Antiochus on the ground of a treaty,
received pardon from the Romans. Aristides, in his second speech
On Leuctra, says that the Thebans, who had followed the leadership
of the Lacedaemonians against the Athenians, ' had shared in an
action unjust indeed, but one which they could cloak with some
plea of justice, that of loyalty to the heads of their league '.
In his first book On Duties Cicero says that we must spare those
who were not cruel, not inhuman, in war ; then, that wars, in which
the prize is glory of empire, should be waged with less bitterness.
In this sense King Ptolemy informed Demetrius that ' They were
fighting not for existence, but for empire and glory '. In Herodian 2
es one should pardon a ruler who has been conquered, if he did not know what was
just.' Copied from Isocrates by Ammianus, Book XXX [XXX. viii. 6].
* The Greek words are these : Kal Hiypw utv -noktuovvrts oi>x ovtojs tvkoyovs tlxoutv aWios
tX^pas, ws uvayKaias. ov yap irap ^ulv vpnvvupxovaav dpxi,v v^apva^wv ptpiffrjro, tv uto<p 5<
ipptuuivrjv Kai uu<pi\p*.oyov ovoav, iKartpos r)u(uv «f looriuov (pi\oripias tii avruv uvdtikKtv.
Excellently said.
Chap. XI] The Right of Killing in a Lawful War 731
Severus says : ' When we waged war against Niger, we had not in
fact such specious grounds for enmity ; for each of us with equal
ambition sought to secure for himself the principate, which lay
open to all and was still an object of dispute.'
2. Often there occurs what we find stated in Cicero regarding
the war between Caesar and Pompey : ' There was some uncer-
tainty ; there was a contest between the most eminent generals ;
many were in doubt as to what it would be best to do.' The same
author says elsewhere : ' Even if we are guilty of some fault arising
from human error, we are certainly guiltless of crime.' Evidently,
as in Thucydides, those acts are said to deserve pardon which are
done, * not from wickedness, but rather from an error of judgement '.
Cicero says also of Deiotarus : ' He did not act from hatred
of you, but he went astray through a common error.' Sallust writes
in his Histories : ' Of the rest of the crowd, after the fashion of
a mob rather than prudently, the one followed the other as wiser
than himself.' What Brutus wrote with regard to civil wars might,
I should think, well be referred to most other wars : ' More zeal
should be shown in preventing them than in giving vent to wrath
against the vanquished.' *
[v. 13-1
VII. — Punishment may often be remitted justly even to enemies who
have deserved death
1. Even where justice does not demand the remission of punish-
ment, this is nevertheless often in conformity with goodness, [518]
with moderation,2 with highmindedness. ' The greatness of the
Roman people has been augmented by pardoning,' says Sallust.
From Tacitus we have : ' We ought to make use of as great kindness
towards suppliants as tenacity against an enemy.' Seneca says : ' It
is characteristic of wild beasts, though not of the higher types, to
bite and worry those that have been struck down. Elephants and
lions pass by what they have thrown over.' These words of Virgil
are often timely,
Not here undone the Trojan's victory,
Nor will one life decide so great an issue.
2. On this point there is a notable passage in the fourth book
of the Ad Herennium :
Our ancestors did well in establishing this practice, not to put to death any king
whom they had made prisoner in war. Why so ? Because it was nnjust to take advantage
Annals,
XII [xx].
On Cle-
mency,
I. v.
[IV
xvi. 23.]
1 Bembo, IX.
1 King Theodoric in Cassiodorus, [Variae,] II. xli : ' Those wars have turned out successfully
for me which have been terminated without resort to extreme measures ; for he conquers effectively
who knows how to exercise moderation in all things.'
732
On the Law of War and Peace
[Book III
[Eume-
nius,
vi. io.1
See
Plutarch,
Aemilius.
Paulus
xxxvii
= p.274F].
War, VII.
of the opportunity which fortune had given us for the punishment of those vvhom that
same fortune had but shortly before placed in a most exalted station.
What of the fact that he led an army against us ? I cease to recall it. Why so ?
Because a brave man holds as enemies those who strive for victory, but considers as men
those who have been conquered, in order that courage may lessen war, and humaneness
enrich peace. But if he had conquered, he would not have done the same, would he ?
:hen do you spare him ? Because I have been accustomed to despise such folly,
not to imitate it.
If you take this with reference to the Romans (a point that is
uncertain, since this writer uses foreign and imaginary examples), it
is in direct opposition to what we find in the panegyric addressed to
Constantine, the son of Constantius :
He may be more prudeht who binds his adversaries to him by pardon, but he is
stronger who tramples upon those that are angry. You, Emperor, have received that
ancient trust of the Roman Empire, which was wont to exact the vengeance of death
from the captured leaders of the enemy. In those days captive kings, after having adorned
the chariots of those celebrating triumphs, from the city gates to the forum, as soon
as the victorious general began to turn his chariot toward the Capitol were dragged off
to prison and put to death. Perseus alone, at the personal intercession of Paulus, who
had received his surrender, escaped the severity of this law. The rest, chained in dark
dungeons, furnished an object lesson to other kings,1 that they would find it preferable
to cultivate the friendship of the Romans rather than to rouse their sense of justice.
But this writer also speaks too sweepingly. Josephus, in his
account of the death of Simon Barjoras, makes the same point regard-
ing the severity of the Romans, but he is speaking of leaders like
Pontius the Samnite, not of those who had the title of king. The
substance of his narrative in translation is as follows :
The end of the triumph came after the arrival at the temple of Jupiter on the Capi-
toline hill ; for the ancient custom of the state required that victorious generals should
wait there until the death of the leader of the enemy should be reported to them. This
leader was Simon, son of Joras, who was led among the captives in the triumphal pro-
cession ; then, with a noose about his neck he was dragged into the forum, being mean-
while scourged by his guards. It is the Roman custom to exact punishment in this place
from those who have been condemned of capital offences. When it was reported that
Simon was dead, there followed the announcement of favourable omens and then
sacrifices.
1 I should not like to have this custom resurrected. Nevertheless even Joshua put captured
kings to death ; Josephus, Antiquities of the Jews, V. i [V. i. 19]. Dio Cassius [XLIX. xxii. 6] says of
is : ' He crucified Antigonus and scourged him with rods ' ; but he takes pains to add : ' a
thing which no other king had suffered at the hands of the victorious Romans.' The same story is
in Josephus, Book XV \Antiquities of ihe Jews, XV. i. 2].
Eutropius, Book X [X. iii], says of Maximian Herculius [rather of Constantine 1] : ' When the
Franks and Alemanni had been slaughtered, and their kings taken prisoner, he cast the kings to the
wild beasts. ,t spectacle which he had prepared as a distinction of his ofhce.' See
X VII. ii. 9], on the king of the Alemanni who was hung from a gibbet. Theodoric,
beheaded Athiulf, king of the Suevi, in Spain, as is recorded by Jordanes,
Hislory of Goths [xliv].
Verily, these instances furnish proof to kings that they should practise moderation, and that tht-v
should reflect that they too are subject to human vicissitmlo, ii God so wills ; and that, accordiiiL; \<>
the saying of Solon, which Croesus remembered when in like peril, one cannot pass judgement upon
a man s good fortune until he is dead.
Chap.XI] The Right of Killing in a Lawful War
733
in
the
passage on
Cicero gives an almost identical account
punishments in his speech Against Verres.
3. Of commanders who met such a fate we have numerous
examples ; of kings, a few, as Aristonicus [Aristobulus],1 Jugurtha,
Artabasdus. But yet, besides Perseus, Syphax,2 Gentius, Juba, and, in
the time of the Caesars, Caractacus, and others, escaped such punish-
ment, so that it appears that the Romans took into account both the
causes of war and its manner of conduct, although Cicero and others
admit that when victorious they were unjustly severe. So in Diodorus
Siculus, Marcus Aemilius Paulus, in the case of Perseus, gives good
advice to the Roman senators when he says : ' If they had no fear
of men, yet they should fear the divine vengeance which hangs over
those that make too insolent a use of victory.' [519] Plutarch
records 3 that in the wars among the Greeks even the enemies of the
Lacedaemonians did no violence to their kings, through respect for
the royal dignity.
4. An enemy therefore who wishes to observe, not what the
laws of men permit, but what his duty requires, what is right from
the point of view of religion and morals, will spare the blood of his
foes ; and he will condemn no one to death, unless to save himself
from death or some like evil, or because of personal crimes which
have merited capital punishment. Furthermore, from humanitarian
instincts, or on other worthy grounds, he will either completely
pardon, or free from the penalty of death, those who have deserved
such punishment.
The same Diodorus Siculus, whom I have mentioned, has
an excellent statement : ' The storming of cities, the winning of
battles, and all other successes in war, are more often due to fortune
than to valour. But for those in the highest authority to show mercy
to the vanquished is the work of wisdom alone.' In Curtius we
read : ' Although Alexander could justly have been angry with those
who were responsible for the war, still he gave pardon to all.'
[V. xxvi.
66.]
[OnDuties,
I. xi; III.
x.]
Selections
[xxxi. 2].
XXVII
[XVII.
xxxviii] .
[IX. i.
VIII. — One must take care, so far as is possible, to prevent the death of
innocent persons, even by accident
Again, with regard to the destruction of those who are killed by
accident and without intent, we must hold fast to the principle
which we mentioned above. It is the bidding of mercy, if not of
justice, that, except for reasons that are weighty and will affect the
1 See Appian, Mithridatic Wars, at the end [xvii. 117].
2 Historians differ in regard to him. Many relate that he died in the neighbourhood of Rome
before the triumph ; Polybius [XVI. xxiii], that he was led in the triumph ; Appian [Punic Wars,
v. 28], that he died of disease, while his fate was under consideration.
3 [528] Agis[xxi=p. 804 e].
734
On the Law of War and Peace
[Book III
safety of many, no action should be attempted whereby innocent
[V. ».] persons may be threatened with destruction. Polybius is of the same
opinion as ourselves, and in his fifth book speaks thus : ' It becomes
good men not to wage a war of annihilation even with the wicked,
but to proceed only so far that crimes may be remedied and corrected ;
and not to involve the innocent in the same punishment as the guilty,
but even to spare those who are guilty for the sake of the innocent.'
[On
Anger.)
III. xxiv.
Deut., xx.
«4-
Numbers,
xxxi. 18.
Jonah,
ii].
IX. — Children should always be sfared ; zvomen, unless they have been
guilty of an extremely serious offence ; and old men
I. With these principles recognized, the defining of provisions
to cover the more special cases will not be difficult. ' Let the child
be excused by his age, the woman by her sex,' x says Seneca in the
treatise in which he vents his anger upon anger. In the wars of the
Jews God himself desired that women and children be spared even
after peace had been offered and rejected — apart from a few peoples
that were excepted by a special law, and against whom the war was
not a war of men, but of God, and was so called. When He desired
that the women of the Midianites should be put to death because of
their particular crime, he excepted the maidens who were virgin.
Indeed when He had sternly threatened the Ninevites with destruc-
1 Pliny, Natural Hislory, VIII. xvi : ' When the lion is enraged, he attacks men before women,
and children only when very hungry.' On these lines of Horace, Odes, IV. vi [IV. vi. 18 ff.],
describing Achilles :
Children as yet untaught to speak would he consume
In the Achaeans' fires, even those that lay
In their mother's womb,
the Scholiast comments thus : ' He bitterly inveighs against the cruelty of Achilles, who, if Apollo
had permitted him to live, was so cruel that he would have spared neither infants nor babes still
unborn.'
Philo, De Constitutione Principis [xiii], says : ' But let maidens and women go free,' and gives as
the reason : ' It is cruel to make women the accessories of men, who devise wars.' The same author,
On Special Laws, II [III. xx], writes: 'For against men of ripe age there may be found a thousand
reasonable pretexts for differences and quarrels. But against children, who have just come into the
light and life of men, not even calumny has anything to say, for they are clearly innocent.'
Josephus, Antiquities of the Jews, Book IX [IX. xi.], says of Manahem : ' By not even sparing
infants he reached the extreme of cruelty, or rather ferocity. For he committed against his fellow
countrymen acts which would not deserve pardon if they had been done to foreigners conquered in
war.' Josephus also relates [Antiquities oflhe Jews, XII. viii. 3 and 5] that Judas Maccabeus, upon taking
Bosra and Ephron, slew ' all males and those capable of fighting'. And elsewhere [Antiquilies of the
Jews, XIII. xiv. 2] he calls the penalty which Alexander, surnamed the Thracian, exacted from the
women and children of the Jews, ' an inhuman vengeance'. Agathias, III [IV. xix], says: 'Since
indeed it was impious thus to give vent to anger and to rage against newborn infants ignorant of
their fathers' crimes, these deeds of theirs did not go unpunished.'
'he writer who continued his history to the times of King Henry, in speaking of the
Scythians, who had taken Athira, says [Urhs Capta, xiv] : ' Not even infants still at the breast
escaped destruction, but even these were so to speak harvested in their early growth, or withered as
a flower, through the deeds of men untouched by pity, and who knew not that he who stretches his
anger beyond the conquest and subjugation of his enemies sins against nature and violates the moral
law of men.*
Add what Bede has in Book II, chap. xx, on the ferocity of Caraevolla ; and the good law of the
Swiss in Simler [Book II, p. 302, ed. Elzevir] ; and the pious ordinances of Queen Elizabeth, in Camden
on the year 1596.
Chap. XI] The Right of Killing in a Lawful War
735
tion for their very heinous crimes He suffered Himself to be diverted
by compassion for the many thousands of the age which would be
ignorant of the distinctions of right and wrong.
In Seneca there is a point of view which resembles this : ' Does
any one become angry with children whose age is not yet able to
comprehend distinctions ? ' Also in Lucan :
For what crime could little ones have deserved death ?
If God has so done and so ordained — He who is able to kill justly
any persons of whatever age or sex without cause, seeing that He is
the Giver and Lord of life — what right have men, to whom He has
assigned no right over men, to do anything not necessary for the
preservation of human safety and human society ?
2. In the first place, with regard to children we have the
judgement of those peoples and ages over which moral right has
exerted the greatest influence. [520] ' We have arms ', says Camillus
in Livy, ' not against that age which is spared even when cities are
taken, but against men in arms.' He adds that this has a place among
the laws of war, that is the natural laws.
In dealing with the same incident Plutarch says : ' Among good
men even war has certain laws.' Note here the phrase * among
good men ', that you may distinguish this law from the law which
is based on custom and impunity. Thus Florus says that a certain
course of action was inevitable, if honour was not to be violated.
In another passage of Livy we read : ' An age from which even
enraged enemies would withhold their hands ' ; in still another,
* Their cruel rage led them to slay even the infants.'
3. Again, that which is always the rule in respect to children
who have not attained to the use of reason is in most cases valid
with regard to women. This holds good, that is, unless women have
committed a crime which ought to be punished in a special manner,
or unless they take the place of men. For they are, as Statius says,
' a sex untrained and inexperienced in war '. When Nero in the
tragedy calls Octavia a foe, the prefect replies :
Does a woman receive this name ? 1
In Curtius Alexander says : ' I am not accustomed to wage war
with prisoners and women ; he whom I am to hate must be in
arms.' Gryphus, in Justin, declares that * None of his ancestors, in
all their numerous civil and foreign wars, had after a victory ever
displayed cruelty to women, whose very sex exempts them from the
On Anger,
II. ix [II.
x].
[II. 108.]
Victoria,
On the Law
of War,
no. 36.
[V. xxvii.
7-]
Camillus
[x=p.i34
B].
I [Xii].
XXIV
[xxvi. 11].
[XXVIII.
xx. 6.]
[Silvae,
I. vi. 53-1
[Seneca,]
Octavia
[864].
V [IV.
xi. 17].
XXXVIII
[XXXIX.
ii. 7].
1 And so Tucca and Varus thought that we should delete from the second book of the Aeneid
the verses [567-88] in which Aeneas deliberates whether he shall kill Helen.
1569.27 3 d
73&
On the Law of War and Peace
[Book III
[Annals,
I. lix.]
IX. i
[IX. ii. 4].
XIII
XIV
[XIII.
[Panegyric
of Theo-
dosius,
xxix.]
[Thebaid,
v. 258 f.]
dangers of war and the savageiy of thevictors.' In Tacitus another
says that ' He is not waging war against women, but openly against
armed men.'
4. Valerius Maximus calls the cruelty of Munatius Flaccus
against infants and women ferocious, and intolerable even to hear
about. In Diodorus it is related that the Carthaginians at Selinus
slew old men, women, and children, * uninfluenced by humane
feelings ' ; elsewhere he calls this conduct ' cruelty \ Latinus
Pacatus refers to women as * the sex which is spared by wars '. Papinius
[Statius] has a similar statement about old men :
Old men, a throng
Inviolate in war.
Victoria,
Onthe
Law of
War,
no. 36.
XXVIII
[xxiii. 1].
Antiquities
ofthe Jews,
XII. iii
W.
Livy, V
[xxi. 13].
Greek
Questions
[xxi = p.
296 B-D].
VIII [iii.
331.
X. — Those also should be spared whose occupations are solely religious
or concerned with letters
1. The same principle is in general to be applied to men whose
manner of life is opposed to war. ' By the law of war armed men
and those who ofler resistance are killed,' as Livy says ; that is, by
that law which is in harmony with nature. Thus Josephus says that
it is right that in war those who have taken up arms should pay the
penalty, but that the guiltless should not be injured. When Veii
was stormed, Camillus gave orders that the unarmed should be spared.
In this class must be placed first, those who perform religious
duties. From ancient times among all nations it has been customary
that such men should abstain from the use of arms ; and so in turn
men refrained from violence toward them. Hence the Philistines,
the enemies of the Jews, did not harm the school of the prophets l
which was at Gaba, as one may see in J Samuel, x. 5 and 10. And
so David in company with Samuel fled to another place where there
was a similar school, that was removed, as it were, from all harm at
the hands of armed forces (j Samuel, xix. 18). The Cretans, Plutarch
tells us, when engaged in internal strifes, refrained from doing any
harm to priests,2 and to those in charge of cremating the dead, whom
they called ' cremators '. This explains the force of the Greek
proverb, ' Not even a fire-bearer was left.' Strabo notes 3 that in
1 C529] Hyrcanus, while besieging Jerusalem, sent victims to the Temple, as the Jews relate.
The Goths are likewise praised by Procopius, Gothic War, II [II. iv], because they spared the priests
of Peter and Paul outside the walls of Rome. See the supplement of Charles the Great to the Bavarian
Law [no. 2], and the Lombard Law, I. xi. 14.
1 Servius, On the Aeneid, VII [VII. 442], says: 'For he was excluded from war, if not by his age,
at least by the sanctity of his priesthood.'
• Also Polybius, Book IV [IV. lxxiii], and Diodorus Siculus in the Excerpta Peiresciana [p. 225].
In like manner also those who went to compete at the Olympic, Pythian, Nemean, and Isthmian
Games in time of war enjoyed ' safe conduct and security '. This we learn from Thucydides, V [V.
xlix] and VIII [VIII. x] ; and Plutarch, Aratus xxviii=p. 1040 b].
Chap. XI] The Right of Killing in a Lawful War
737
olden times, when the whole of Greece was ablaze with war, the
Eleans, as sacred to Jupiter, and those enjoying their hospitality,
lived in deep peace.
2. In the same class with the priests are deservedly ranked those
who have chosen a similar manner of life, as monks and novices, that
is, penitents ; these the canons, in accordance with natural justice,
order men to spare just the same as priests. [521]
To priests and penitents you may properly add those who direct
their energies to literary pursuits, which are honourable and useful
to the human race.
Decretals
I. xxxiv.
2.
XI. — Farmers should be spared
In the second place farmers, whom the canons also include,
should be spared. Diodorus Siculus relates with praise of the
inhabitants of India that ' in wars indeed enemies kill one another,
but they leave the tillers of the soil unharmed, for the reason that
these render a common service.' Of the ancient Corinthians and
Megarians Plutarch says : ' No one harmed the farmers in any way.'
Cyrus ordered that notice be given to the king of the Assyrians ' that
he was ready to release those who tilled the soil, and not to harm
them \ Of Belisarius Suidas says : " He spared the tillers of the soil
to such a degree, and exercised so great care for them, that when
he was in command none of them at any time suffered injury.'
XII. — Merchants and like persons should be spared
The canon adds merchants ; and this provision is to be taken as
applicable not only to those who make a temporary sojourn in hostile
territory, but also to permanent subjects ; for their life also is foreign
to arms.
Under this head are included at the same time artisans and other
workmen, whose pursuits love peace, not war.
XIII. — Prisoners of war also should be spared
1. To come to those who have borne arms, we have already
mentioned the remark of Pyrrhus in Seneca, who says that a sense
of shame, that is, respect for what is right, forbids us to deprive
a prisoner of his life. We have adduced the similar view of Alexander,
which included prisoners with women. We may present also this
statement of Augustine : ' Let necessity, not inclination, cut ofr x
1 Gratian suggested deprimat (let it crush). Plutarch says in his Marcellus [Comparison of Pelopidas
and Marcellus, i = p. 316 d] : ' Epaminondas and Pelopidas never put any one to death after a victory,
nor reduced states to slavery ; and it is believed that, if these men had been present, the Thebans would
not have acted as they did to the people of Orchomenos.' Marcellus followed the same practice at the
3 D 2
Library,
II [xxxvi].
[Greek
Questions,
xvii = p.
295 c.]
Xenophon,
Training
of Cyrus,
V [iv. 24].
[On the
word B(\i-
oapios.]
[III. x. 1.]
[III. xi.
9- 3-]
Letter i,
To Boni-
face
[Letters,
clxxxix.
6].
738
On the Law of War and Peace
[Book III
[Agesilaus
i. 21.]
XIII
XVII
[xiii].
[xci. 6-7.]
V [ix].
Historus,
IV
[xxxix].
On Peace,
ii [ = p.
8oc].
2 Kings,
vi [22].
[line 965.]
[Iineiou.]
the enemv who is fighting. Just as violence is done to him who
fights and resists, so pity is now due to the vanquished or captive,
especially in the case of him from whom no disturbance of the peace
is feared.'
:iophon writes of Agesilaus : ' He instructed his soldiers not
to punish prisoners of war as guilty of crime, but to guard them
as men.' In Diodorus Siculus we find : ' All [the Greeks] fight
those who resist, but spare the vanquished.' In the judgement of
the same writer, the Macedonians who were under Alexander ' treated
the Thebans more harshly than the law of war allowed '.
2. In his history of the Jugurthine War Sallust, having related
that youths had been killed after surrendering, says that that was
done contrary to the law of war ; this is to be interpreted as against
the nature of justice and the usage of more civilized peoples. In
Lactantius we read : ' The vanquished are spared, and room is found
for mercy in the midst of strife.' Tacitus praises Antonius Primus
and Varus, the Flavian generals, because they had vented their rage
on no one except in battle. Aristides says : ' It befits men of our
character to constrain with arms those who resist, but to treat leniently
those who have been overthrown.'
In regard to prisoners the prophet Elisha addresses the king of
Samaria as follows : ' Wouldst thou smite those whom thou hast
taken captive with thy sword and thy bow? ' In the Children of
Hercules by Euripides, when the herald inquires :
Then does your law forbid to slay a foe ?
the chorus replies :
Yes, one whom Mars has suffered to survive the fray.
[522] In the same play the captive Eurystheus says,
The hands which me shall slay will not be guiltless.
capture of Syracuse, as Plutarch says in the same passage [xix = p. 308 d]. See the same writer in
his life of Cato of Utica [lviii=p. 787 C d].
4 When Cabades, the Persian king, had taken Amida by storm, and had caused a great slaughter,
an aged pricst told him that it was not befitting for a king to kill those who were already prisoners .
This is told by Procopius, Persian War, I [I. vii], who also says in the Persian War, II [II. ix] : ' It is
contrary to piety to be cruel to prisoners.' In the same writer there is a notable speech of Belisarius
to his soldiers at the capture of Naples ; Goihic War, I [I. ix].
To one who advised him to kill his Scythian prisoners, the Emperor Alexius in Anna Comnena
| V 1 1 1 . vi] replied : ' Even though they are Scy thians, still they are men ; even though they are
enemies, still they are deserving of pity.' Gregoras, Book VI [VI. viii], says : ' Those deeds which
are done in battle and actual warfare, whatever they may be, secure pardon for the doer, on the
gTound that his mind is beset at such a time, and that his hand in a fit of intoxication does not take
1 M the guide and contn-lh r <>{ its actions. But when the extreme danger is over, when the mind
has the time freely to examine and decide everything, surrender of the control of action to the hand
tes a man's base purpose, if anything unseemly occurs.'
Add the other passage from the same Gregoras, which we included in the notes at the end cf
tr VII, oi this book, and Chalcocon<ly]as, Book V [ = p. 259, ed. Bekker], on a laudable custom
of the Poles. Julian, in the second panegyric on Constantius [Orations, ii = p. 86 c], in his person
bca the good ruler : ' Once victorious in battle he put an end to the \\ork of the sword, thinking
it a crime to take the life of a man who has ceased to defend himself.'
Chap. XI] The Right of Killing in a Lawful War
739
In Diodorus Siculus, the Byzantines and Chalcedonians, because
they had put to death a large number of prisoners, are branded
with this characterization : * They perpetrated crimes of extra-
ordinary cruelty.' The same writer els«where speaks of sparing
prisoners x as ' a law common to all ' ; those who do otherwise, he
says, beyond question do wrong. To spare prisoners is commanded
by the nature of goodness and justice, as we just now heard Seneca
say in his philosophical treatises. We see that in history those are
praised who, when they might have been burdened or endangered
by an excessive number of prisoners, preferred to release all rather
than kill them.
XII
[lxxxii].
[XIII.
xxvi.]
0» Bene-
fits, V.
xviii
[On Cle-
mency, I.
xviii] .
XIV. — The surrender of those who wish to yield upon fair terms should
be accepted
i. For the same reasons the surrender of those who yield upon
condition that their lives be spared ought not to be rejected, either
in battle or in a siege.2 Thus Arrian says that the slaughter by the
Thebans of persons who had surrendered was not in accordance with
Greek custom, ' not a Hellenic killing \ Likewise Thucydides in his
third book says : ' You have taken us into your power willingly and
with outstretched hands. It is the Greek custom not to kill such
persons.' In Diodorus Siculus, the senators of Syracuse declare:
' It is worthy of a noble mind to spare the suppliant.' Similarly
Sopater : ' It is customary to spare suppliants in times of war.'
2. In the case of besieged cities the acceptance of surrender was
the rule among the Romans before the battering-ram had shaken the
wall. Caesar informed the Adratuci that he would save their city
if they would surrender before the ram should have touched the wall.
The custom even now obtains in the case of unfortified places, before
cannon fire is opened ; and, in the case of more strongly fortified
places, before an assault is made upon the walls. But Cicero, looking
not so much to what is done as to what is right according to nature,
declares himself upon this point as follows : ' You must both be
merciful to those whom you have overcome by force, and accept
the surrender of those who lay down their arms and take refuge in
the good faith of generals, even though the battering-ram has already
battered the wall.'
The Jewish interpreters note that it was a custom among their
[Anabasis
o/ A lexan-
der, I. ix.
io.]
[III. Iviii.]
[XI. xcii.]
Gallic
War, II
[xxxii].
On Duties,
I [xi. 35].
1 Capitolinus says in his Marcus [Aurelius] Antoninus [xxiv] : ' He observed justice, even with
regard to prisoners taken from the enemy.'
2 [530] In [Procopius,] Gothic War, IV [IV. xii], the Romans say to the Persians, who were
in the citadel of Petra : ' We, however, pity you who cast the yoke from your necks, and we wish
to spare you who seek death, and to save you although you lightly despise life, as becomes Christians
and citizens of the Roman Empire/ See De Serres in his Life of Francis I and Life of Henry II.
740
On the Law of War and Peace
[Book III
ancestors that, when they were besieging a city, they would not
completelv encircle it, but would leave a sector open for those who
wished to escape,1 in order that the issue might be determined with
less bloodshed.
Annals,
XII
Jugurthine
War [xci.
6-7].
On Public
Adminis-
tration, I
[iv. x].
viii.
xxiii. i.]
XLV
[XLII.
xxi. 3].
[Plutarch,
Brutus,
xxvi = p.
996 A.]
XV. — Those also who have surrendered unconditionally should be spared
The same sense of justice bids that those be spared who yield
themselves unconditionally to the victor, or who become suppliants.
* To butcher those who have surrendered is savage ' is the judgement
of Tacitus. Likewise in the case of the Campsani, who had sur-
rendered to Marius, Sallust, after relating that those who had reached
the age of puberty were slain, adds that this was a crime against the
law of war, that is, the law of nature. The same author says else-
where : ' Not armed men were slain in battle, according to the law
of war, but suppliants, after battle.'
In Livy, as we have said already, ' By the law of war armed men,
and those who resist, may be slain ' ; in another passage we read,
1 who, contrary to law and right, had made war upon those that had
surrendered.' Effort should be directed to this, that men should
rather be driven to surrender through fear, than that they should
be slain. Praise is given to the conduct of Brutus, who ' did not
permit a charge to be made upon his opponents, but surrounded
them with cavalry, ordering that they be spared, on the ground that
they would soon be on his side.'
8tt
Victoria,
On the Law
of War,
nos. 49
and 60.
XVI. — What has been stated is true^ provided that no serious crime has
preceded ; how this is to be understood
1. Against these precepts of justice and the law of nature
frequently exceptions are offered, which are by no means just ; as,
for example, if retaliation is required, if there is need of inspiring
terror, if too determined a resistance has been offered. Yet he who
recalls what has previously been said in regard to valid reasons for
putting to death will easily perceive that such exceptions do not
afford just [523] grounds for an execution.
There is no danger from prisoners and those who have sur-
rendered or desire to do so ; therefore in order to warrant their
execution it is necessary that a crime shall have been previously
committed, such a crime, moreover, as a just judge would hold
1 So Scipio Aemilianus, when about to destroy Carthage, proclaimed : ' Let those who wish,
flee' ; Polybius [Appian, Punic Wars, xix. 130].
Chap. XI] The Right of Killing in a Lawful War
741
punishable by death. And so we sometimes see anger vented upon
prisoners or upon those who have surrendered, or a surrender upon
guarantee of life refused, if any who were convinced of the injustice
of a war have still remained in arms ; if any have injured the good
name of their enemies with monstrous slanders ; if they have violated
their plighted^ word, or another right of nations, such as that of
ambassadors ; if they were deserters.
2. But nature does not sanction retaliation except against those
who have done wrong. It is not sufficient that by a sort of fiction the
enemy may be conceived as forming a single body ; this may be under-
stood from our foregoing discussion on the sharing of punishments.
In Aristides we read : ' Is it not absurd to wish to imitate, as if they
were right, the things which you attack and say it is wicked to do ? '
Plutarch accuses the Syracusans on this ground, that they slew the
wives and children of Hicetas for the sole reason that Hicetas had
killed the wife, sister, and son of Dion.
3. Even the advantage, which is anticipated for the future from
frightfulness, does not suffice to give the right to kill ; but if the
right already exists it may be among the reasons for not waiving
the right.
4. Furthermore a quite obstinate devotion to one's own party,
provided only that the cause is not altogether dishonourable, does
not deserve punishment, as the Neapolitans claim in Procopius. Or,
if such devotion is punished in any way, the penalty should not be
carried so far as death ; for no just judge would so decide. When,
in a certain town, which had resisted with unusual fierceness, Alexander
had ordered that all above the age of puberty should be slain, he
seemed to the Hindoos to be waging war after the manner of brigands ;
and dreading the effect of such a reputation the king began to make
a milder use of victory.
The same Alexander did better in wishing to spare certain
inhabitants of Miletus, ' because he saw that they were noble and
faithful to their cause ', to cite the words of Arrian. Phyto, the
commander of the people of Rhegium, when hurried to torture and
death by Dionysius because of his too obstinate defence of the city,
cried out that he was being punished for refusing to betray the city
and that the deity would in a short time exact retribution for the
mistreatment. Diodorus Siculus calls this punishment wicked,
' lawless punishment '.
I am greatly pleased with the prayer which is found in Lucan :
Be he the c.onqueror, who sees no need
To draw the ruthless sword against the vanquished,
Who does not think an impious deed was done,
Because his countrymen took arms against him,
On Peace,
ii [=p.
75 c].
Plutarch,
Timoleon
[xxxiii =
p. 252 c] ;
Dion [lviii
= p.983E].
Gothic
War, I
W.
Polvaenus,
IV [iii.
30].
[Anabasis
of Alex-
ander, I.
xix. 8.]
[XIV.
cxii.]
[VII.
312 ff.]
74-7
On the Law of War and Peace
[Book III
[Iliad,
XXIII.
176.]
provided, nevertheless, that under the name of countiymen we under-
stand not those of this or that district, but fellow-citizens of that
common society which embraces all mankind.
5. Much less even is slaughter justified by resentment at some
loss that has been sustained, as we read that Achilles, Aeneas, and
Alexander avenged their friends with the blood of prisoners or of
those who surrendered. Appropriately, therefore, Homer chants
this verse :
An evil deed he pondered in his heart.1
[Deut., xx.
10.]
On Anger,
II. x.
[II. 198 fif.]
For Cluen-
tius [xlvi.
128].
[On Public
Adminis-
tration, I.
vi. 4.]
XVII. — // is right to spare those who are guilty, if their number is very
great
Even where the crimes are such that they may seem worthy of
death, it will be the part of mercy to give up something of one's full
right because of the number of those involved. Such clemency, we
see, began with God Himself ; for He desired that the Canaanites
and their neighbours, by far the most wicked of peoples, should have
the offer of a peace, [524] which would grant them their lives
upon condition of their payment of tribute. Here applies the saying
of Seneca : ' The severity of the general is directed against individuals,
but pardon is necessary where the whole army has deserted. What
takes away a wise man's anger ? The crowd of wrongdoers.' 2 Per-
tinent also are these verses of Lucan :
Famine, the frenzy of the sea, and swift disaster,
Or pestilence of earth and sky, or war's slaughtering,
Have oft laid low so many youths in hateful death,
But never punishment.
' The drawing of lots was devised that an undue number might
not suffer punishment,' says Cicero. Sallust says to Caesar : ' Let
no one summon you to cruel punishments or harsh judgements,
by which the state is more afflicted than remedied.'
XVIII. — Hostages should not be put to death unless they have themselves
done wrong
1. What decision according to the law of nature should be
rendered in regard to hostages may be gathered from what we have
1 That to later ages this seemed cruel is noted by Servius, On the Aeneid, X [X. 519].
' ' The sin that is committed by many goes unpunished,' says the Scholiast on Juvenal [ii. 46],
Lucan [V. 260]. In Xiphilinus, who quotes from Dio [LV. xx], Livia says : ' If any one
wishes to punish all such deeds rigorously, he does not see th;it he is thereby led to slay thc
rity of men.' Augustine writes b his Letiers, lxiv [xxii. 5] : 'Rathei by admonitioD than t>y
. In this way in fact one must deal with a multitude of sinners ; but severity is to be exercised
I the crimes of a few.'
Add Gail, De Pace Publica, II. ix. 36 [II. ix. 37].
Chap. XI] The Right of Killing in a Lawful War
743
said already. In former times it was commonly believed that each
person had over his own life the same right which he had over other
things that come under ownership, and that this right, by tacit or
expressed consent, passed from individuals to the state. It is, then,
not to be wondered at if we read that hostages who were personally
guiltless were put to death for a wrong done by their state, either as
though done by their individual consent, or by the public consent in
which their own was included. But now that a truer knowledge has
taught us that lordship over life is reserved for God, it follows that
no one by his individual consent can give to another a right over life,
either his own life, or that of a fellow-citizen.
Consistently with this point of view Agathias relates that to the
good general Narses it seemed atrocious to exact punishment from
innocent hostages. Other writers say the same of other generals.
They cite also the example of Scipio, who said that he would not be
severe with innocent hostages, but with the individuals themselves
who had been guilty of defection,1 and that he would exact punish-
ment not from an unarmed foe, but from a foe in arms.
2. Furthermore some of the modern jurists, men not without
standing, say that such agreements are valid if they are confirmed
by custom. This I admit, if by right they mean mere freedom from
human punishment, which in the discussion of this subject often
passes under such a name. If, however, they consider that those
who take the life of any one on the justification of an agreement
alone are exempt from wrongdoing, I am afraid that they are both
deceived themselves and by their dangerous authority deceive others.
It is clear that if he who comes as a hostage is, or previously
was, of the number of great criminals, or has subsequently broken his
pledge given in an important matter, it may be that his punishment
will not be unjust.
3. But when Cloelia, who had come as a hostage, not of her
own accord 2 but by the command of the state, made her escape by
swimming the Tiber, her ' courage was not only pardoned, but even
honoured by the Etruscan king ', to use the words of Livy in his
account of the incident.
Victoria,
On ihe Law
of War,
no. 43.
I [xii].
Livy,
XXVIII
[xxxiv. 9].
Menochio,
De
Arbitrariis
Iudicum
Quaestion-
ibus, vii.
II [xiii. 9].
XIX. — All useless fighting should be avoided
This remains to be added, that all engagements, which are of no
use for obtaining a right or putting an end to a war, but have as their
1 Julian says the same in Eunapius, Selections on Embassies, ix [=Fragmenta Historicorum Grae-
corum, IV, § 12, p. 18].
2 Cf. the story cf the hostages who tried to withdraw frcm this obligation, and were cherefore
punished, in Nicetas, Book II [Isaac Angelus, II. vi].
744
On the Law of War and Peace
[Book III
Acr. V
[Arrian,
Anabasis,
I. xxii].
[Jugur-
thine War,
xcii. 4.]
[Germany,
XXX.]
purpose a mere display of strength, that is, as the Greeks say, c an
exhibition of strength rather than a combat against the enemy ', are
incompatible both with the duty of a Christian and with humanity
itself. Consequently rulers, who must render account of the useless
shedding of blood to Him in Whose name they bear the sword,
should strictly forbid such combats. In fact, Sallust praised the
generals who achieved victory without staining their army with
blood. Tacitus says of the Chatti, a people of known courage : ' Raids
and chance encounters l are rare among them.'
1 Plutarch censures Demetrius [Detnetrius, xl =p. 908 c], 4 because he thrust his soldiers into danger,
and exposed them to battles, rather from zeal for fame than for the sake of a real advantage.'
CHAPTER XII
MODERATION IN LAYING WASTE AND SIMILAR THINGS
I. — What devastation may be lawful, and in what degree
1. In order that any one may be able to destroy another's
property without doing wrong, it is requisite that one of these three
conditions should precede :
A necessity, such as should be understood to have been excepted
in the first institution of ownership. An example would be that
a person in order to escape imminent danger should cast into a river
the sword of a third party, which a madman is about to use. In
this case, however, we have elsewhere said that, in accordance with
the better view, there remains an obligation to make good the loss.
Or, a debt arising from an inequality, it being understood that
the thing destroyed is reckoned as received for that debt, since other-
wise the right would not exist.
Or, a deserving of evil, for which such punishment may be an
equivalent, or the measure of which is not exceeded by the punish-
ment, [531] for, as a theologian of sound judgement observes, equity
does not suffer a whole kingdom to be laid waste because flocks have
been driven off or some houses burned. This was recognized also
by Polybius, who does not wish punishment in warfare to be carried
beyond all bounds, but only so far as necessary that crimes may be
expiated in a just way.
These reasons, which are applicable only within proper limits,
cause the absence of wrong in the destruction of another's property.
2. But, unless a motive of utility commends such a course, it
would be foolish to injure another without securing any good for
oneself. Those, therefore, that are wise are usually influenced by
considerations of utility. Of such considerations the most weighty
is that which was pointed out by Onesander : ' Let him remember
to ruin the enemy's country, to burn and devastate it. For a lack
of money and crops causes war to slacken x as much as an abundance
causes it to flourish.' In accord with this is the saying of Proclus :
1 It is the duty of a good general to weaken the resources of the enemy
II. ii. 9.
Victoria,
On the Law
of War,
nos. 52
and 56.
V[i.]
Strate-
gicus, vi.
[On Plato's
Republic,
III. iii.]
1 Philo, On the Contemplative Life [ii = p. 891 d] : ' Enemies are accustomed to lay waste hostile
territory and to denude it of trees, in order that the enemy may yield the more readily through lack
of necessities.' The same writer says in his On Curses [i] : ' They bring upon themselves «. twofold
misfortune, want for their friends, abundance for their foes.'
745
746
On the Law of War and Peace
[Book III
:iv. ix. 8.]
Herodo-
tus, I
Polvbius,
Frontinus,
Stratege-
mata. III.
I
VII:
XXXIV
[xxx\
Caesar,
Gallic
VI
[iiiand vi].
[Deut., xx.
19, 20.]
On the
Creation of
Magis-
trates [xiii].
in everv way.? Curtius says of Darius : ' He believed that an enemy,
who had nothing except that which he had seized by pillage, could
be defeated by lack of supplies.'
3. In fact that kind of devastation must be tolerated which
compels the enemy to sue for peace in a short time. This method
of warfare was employed by Alyattes against the Milesians, by the
Thracians against the Byzantines, by the Romans against the Cam-
panians, the Capenates, the Spaniards, the Ligurians, the Nervii, and
the Menapii.
Xcvertheless, if you examine the matter aright you will find that
such depredations are ordinarily committed from motives of hatred
rather than from considerations of prudence. It usually happens
either that those conditions which justify devastation are lacking, or
that there are other more cogent reasons which advise against it.
II. — Devastation should be refrained from if the area is profitable for us
and out of the power of the enemy
1. This will happen, first, if our occupation of fruitful ground
is such that it cannot yield produce for the enemy. That is the
particular point of the divine law, which ordains that wild trees be
employed in making walls and military structures, but that fruit-
bearing trees be preserved for purposes of food, with the explanation
that trees, unlike men, cannot rise up against us in battle ; a restric-
tion which Philo,1 by similar reasoning, extends to fields under cultiva-
tion, adding to the law these words :
Why will you be angry with inanimate things, which are both mild and productive
of wholesome fruits ? Do trees, like men who are enemies, show signs of hostility, so that
they must be uprooted for the things which they are doing or threaten to do ? On the
contrary, they are of use to the victors, and furnish them with a supply of the things
which necessity demands, yes even those things which contribute to their pleasure.
It is not man alone that pays tribute, for trees at fixed seasons bear richer tribute, such
that without it man cannot live.
1 Another passage of the same writer, De Humanitale [De Carilale, xx £.], is also worthy of being
transcribed here :
[537] Moses, in dispensing justice even more freely, makes a very ample and liberal use thereof,
in descending from pcrsons endowed with reason to dumb animals, and from duinb anhnals, again,
to the things which spring from the ground ; and of these we must now speak, since we have already
discussed men as being of the most importance, and other creatures which are capable of feeling.
Moses wisely forbade the cutting down of cultivated trees, or the ruinous cutting down of crops
before they are ripe, or the destruction of any products of the soil whatsoever, to the end that the
human race may be supplied with an abundance of food ; and not only an abundance of necessitii >
but also of the things which contribute to a more luxurious life. The crops of the field are in fact
a necessity, desi^ncd for the nourishment of men ; while all the varied fruits of thc treei COOtribute
heir luxuries, although • , when other thingi fail, take the place ol nourishing ioods.
to sanction even the devastation of hostile territory ; cspecially
does he command enemies to refrain from cutting down trees, because he considers it unjust that
the aiiKer which has been aroused against men should be expended upon those things which arc
the cause of no evil. By this very thing he teaches us not to have regard to thc pretenl time only,
Chap. XII] Moderation in Laying Waste and Similar Things 747
Moreover, in discussing the same passage, Josephus says that, if
trees could speak, they would cry out that since they are not the
cause of war it is wrong for them to bear its penalties. Unless I am
mistaken, this is the source of the Pythagorean maxim in Iamblichus :
' Let it be unlawful to injure or cut down a cultivated and fruitful
tree.'
2. Furthermore, in describing the customs of the Jews, in the
f ourth book of his work On Abstaining from Animal Food, Porphyry x
extends this rule (interpreted, as I think, in the light of custom)
even to living things employed in agricultural work. He says that
Moses commanded that these too should be spared in war ; the
writings of the Talmud and the Hebrew interpreters add that this
law is to be extended 2 to anything whatever which may be destroyed
without cause, as touching the burning of buildings, or the destruc-
tion of supplies which can be eaten or drunk.
In harmony with this law is the wise moderation of the Athenian
general Timotheus, who, as Polyaenus relates, ' did not permit
a house or a homestead to be destroyed, or [532] a fruit-bearing tree
to be cut down'. There is also the law of Plato, in the fifth book
of the Republic : ' Let not the land be ravaged, nor the houses set
on fire.'
3. Still more binding will this restriction be after a complete
victory. Cicero disapproved of the destruction of Corinth, even
for the reason that nothing remains in the same condition, but all things are subject to vicissitudes
and changes ; hence it may easily happen that those, who are at present enemies, may again become
allies, after they have joined in conferences and treaties. But it is a harsh thing to deprive friends
of the necessities of life, when, in view of the uncertainty of the future, those things which may be
useful should have been preserved for them.
It has been most truly said by the ancients that friends should be treated as though it were
thought that no enmities could arise, and that offences should be so dealt with that friendship may
be hoped for ; that is, that each one should have in his mind, for his own protection, some measure
of reserve, and not be obliged soon to repent of his excessive violence, through having revealed
his purposes too openly in words and deeds ; [538] and not be obliged to accuse himself, when
the matter can no longer be remedied.
This wise saying, furthermore, should be observed by states, that in time of peace they should
prepare the things which are necessary for war, but in time of war the things necessary for peace ;
and that they should neither place excessive confidence in their friends, as if these could not be
diverted to the opposite side, nor utterly distrust their enemies, as if these could never be restored
to friendship. But even if nothing ought to be done for an enemy in the hope of effecting a recon-
ciliation, certainly none of the things which the scil bears is hostile, but all are friendly, and all
are useful ; indeed the cultivated plants are particularly necessary, seeing that their fruits are either
nutritive or take the place of something nutritive.
War should not be waged on things that have nothing to do with war ; one should not cut,
nor burn, nor tear up by the roots the things which nature has tenderly reared with its streams of
water and its summer skies, that they might bear tribute to men as to kings. For she, as the
excellent and common ruler of all things, has taken care to secure undamaged force and vigour
not only for animals, but also for the offspring of the soil, especially for cultivated plants, because
they require greater care, and are not so prolific as wild plants, but require skilled cultivation to
attain a vigorous growth.
1 His words are [On Abstainingfrom Animal Food, IV. xivj : ' The law also commands us to spare
animals that are man's associates in toil, even on the land of the enemy ; so that it is not permitted
to kill them.' .,,,., . , •
2 But, on the other hand, they wish to restnct lt by adding the exception : unless tree<. situated
in the suburbs should interfere with the javelin-throwers.
[Ant. of
the fews,
IV. viii.
42.]
[Life of
Pythago-
ras, xxi.
99-]
[III. x. 5.]
[V. xvii =
47i a.]
On Duties,
I [xi. 35].
On His
House
[xxiii. 60].
748
On the Law of War and Peace
[Book III
XXVI
[xvi].
Trojan
Women
[285 ff.].
Joshua, vi.
2 Kings,
iii. 19.
though Roman ambassadors had been shamefully treated there ;
and he also characterizes as horrible, criminal, and steeped in the
depths of hatred, a war which is waged against walls, roofs, columns,
and doors. Livy praises the leniency of the Romans after the conquest
of Capua, because they did not by fire and destruction vent their
anger upon innocent buildings and walls.1 In Seneca, Agamemnon
says :
For my part I will confess (thy pardon, Argive land !),
I wished to see the Phrygians brought low and undone ;
But Troy destroyed and razed to earth — such fate
I should have censured.
4. It is true that sacred history teaches us that certain cities
were doomed to destruction by God, and that even contrary to the
general law it was ordered that the trees of the Moabites should be
cut down. This, however, was not done out of hatred of the enemy,
but to show a just abhorrence of their crimes, which were either
publicly recognized as such, or in the judgement of God were worthy
of such punishment.
III. — Devastation should be refrained from if there is good hope for
a speedy victory
1. In the second place, what we have said will hold good even
where the possession of land is in doubt, if there is good hope of
a speedy victory, of which the prize will be both the land and its
xi [vi. 1]. fruits. Thus, as Justin relates, Alexander the Great prevented his
soldiers from devastating Asia, ' saying that they must spare their
1 On this subject there is a notable letter of Belisarius to Totila [in Procopius], Gothic War, III
[III. xxii] :
Previously it was thought that to construct works of beauty was characteristic of wise men
and those versed in civilized life ; that to destroy them, after they had been erected, was the act of
fools and persons who did not blush to leave to posterity marks of their stupidity. It is agreed
that Rome is the greatest and most worthy of admiration of all the cities which the sun beholds.
This pitch of greatness and splendour it has not attained by the labour of one man alcne, nor in
a brief time ; but very many kings and emperors, a vast line of eminent men, many centuries, and
a marvellous accumulation of wealth, have brought together here, among other conditions, the
leading workmen ; and so by the gradual construction of so great a city [539] they have left
monuments of their worthiness to succeeding generations. To destroy this city, therefore, would
be to do a wrong to the human race of all ages, by taking from those who have gone before the
memory of the praise that is due to them, and from those who are to come the pleasure of this spectacle.
Since this is so, reflect that one of two things is inevitable, either you will be conquered by the
Emperor in this war, or your fortune will be the better. If you are victorious, and the city has been
destroyed, you will have lost what is not another's but your own. If it has been saved, you will
enjoy the most beautiful of all possessions. If the lot has been cast against you, and Rome, through
your efforts, is safe, a feeling of gratitude toward you will remain with the victor ; but if Rome
shall have been destroyed your lot will lie beyond hope of mercy. Not only will you gain nothing
by the act, but the reputation which it deserves from all men will follow you. Such reputation is
ready for you, accordmg to your choice ; for the repute enjoyed by those in power corresponds
with their actions.
See also the law of Frederic I in Conrad, Abbot of Ursperg
Palatine, the CkronicUs of Melanchthon.
and, with regard to Frederic Count
Chap. XII] Moderation in Laying Waste and Similar Things 749
own property,1 and not destroy the things which they had come to
take possession of.' So Quintius, when Philip was traversing Thessaly
with a band engaged in plundering, for his part exhorted his troops,
as Plutarch says, to pursue their march as though through a district
which had been given up and already made their own. When urging
Cyrus not to turn Lydia over to his soldiery to lay waste, Croesus
said : ' You will not plunder my city, nor my possessions, for in no
way do these things now belong to me ; they are yours — yours are
the things they will destroy.'
2. To those who do otherwise, the words of Jocasta to Polynices
in Seneca's Women of Thebes are not ill suited :
Seeking to win your country you destroy it ;
To make it yours, you wish to make it nothing ;
Your cause is harmed by this, with hostile arms
You burn the land, lay low the ripened crops,
And terror spread
Through all the fields. No one so wastes his own.
What you bid ruin with fire, with sword to reap,
You hold to be another's.
Flaminius
[v = 37id].
Herodo-
tus, I
[lxxxviif.
[Phoeni-
cian
Women,
558 ff.]
There is a similar thought in these words of Curtius : ' What-
ever they had not ruined, they confessed belonged to the enemy.'
Not far diflerent are the arguments urged by Cicero in his Letters to
Atticus against Pompey's plan of destroying his own country by
starvation. On this ground Alexander the Aetolian censures Philip
in the seventeenth book of Polybius, whose words, according to the
Latin version of Livy, are as follows :
In war he (Philip) does not fight in the open field, nor engage in pitched battles,
but he burns and plunders cities as he flees, and when vanquished spoils the victor'3
prizes. Such was not the custom of the ancient kings of Macedon ; they were wont
to fight on the field of battle, and to spare cities, so far as they could, in order that they
might have a wealthier empire. What sort of a policy is it, to destroy the things the
possession of which is at stake, and to leave for himself nothing except the war l
[IV. xiv.
2.]
IX. vii [4],
ix [2],
x[3l.
[XVII. iii.]
XXXII
[xxxiii.
11-13]-
[533] IV* — Devastation should be refrained from if the enemy has
means of subsistence from other sources
1. In the third place, the same thing will happen if the enemy
can have means of subsistence from another source, for instance,
1 When Gelimer and the Vandals were besieging Carthage, they neither plundered nor laid waste
the land, but took care of it as of their own ; Procopius, in the opening of the second book of the
Vandalic War [II. i].
I read in Helmold, I. Ixvi : ' Is not the land which we lay waste our land, and the people whom
we assail our people ? Why, therefore, are we found to be our own enemies, and wasters of our own
revenues ? '
With this agrees what Bembo has in Book IX, fol. 149 verso. See Paruta, again, against the
Germans, History, Book VI.
750
On the Law of War and Peace
[Book III
[I. lxxx
and lxxxi.]
[Training
of Cyrus,
24.]
;m. x. 5
and 9.]
Economics,
23l-
[Spanish
Decretals,
I.xxxiv. 2.
Codt,
VIII. xvi.
7.
if the sea, or if other boundaries, shall be open. According to
Thucydides, Archidamus, in the speech in which he tried to dissuade
his fellow Lacedaemonians from war against the Athenians, asks what
hopes they have in waging war : Do they perhaps hope that, because
they enjoy military superiority, it is easy for them to lay waste the
land of Attica ? But, he said, the Athenians have other lands under
their sway (meaning Thrace and Ionia) and can obtain what they
need through importations by sea.
Under such conditions, therefore, it is best to leave agriculture
undisturbed even along the common frontier. This we see in recent
times was the arrangement for a considerable period in the war of
the Netherlands against the Empire, with the payment of tribute to
either party.
2. This is in accord with the ancient custom in India, where,
as Diodorus Siculus x says : ' The farmers are undisturbed and,
as it were, held sacred ; in fact even in the vicinity of camps and
armies they pursue their tasks secure from danger.' He adds : ' Men
neither burn the enemy's fields, nor cut down the trees.' Later :
' Xo enemy inflicts harm upon any farmer, but this class of men, as
being common benefactors, is accorded protection from all wrong-
doing.'
3. Xenophon says that it was agreed also between Cyrus and
the Assyrian king that * there should be peace with the farmers,
war with those who bore arms \ So Timotheus 2 rented the most
fertile part of the land to husbandmen, as Polyaenus relates ; nay
more, as Aristotle adds, he even sold the crops to the enemy, and paid
his soldiers with the money. Appian bears witness that this was
done also by Viriathus in Spain. As we have seen, in the war of the
Netherlands and the Empire which we have mentioned, this arrange-
ment was carried out with the highest degree of reason and profit,
and evoked the admiration of foreigners.
4. The canons, teachers of humanity, established these practices
for the imitation of all Christians, as those who ought to exercise
and who profess a greater degree of humaneness than others ; and so
they seek to protect from the perils of war not merely the farmers,
but also the animals which they use in cultivation and the seeds
which they keep for sowing. The reason is assuredly the same as
that for which the civil laws forbid that things useful for ploughing
1 Book II [II. xxxvi].
* Plutarch gives the same information with regard to the Megarians, in his Greek Questions [xvii =
p. 295 B C.]. Of Totila, when he was besiegin iy», Gothic War, III 1 1 1 1. xiii] : ' In
the meantime he did no harm to the fanncrs tnroughoul the wlmle of I taly, but ordered them to till
their lands continuously, without fear, just as they had been accustomed, provided that they paid
tribute to him.'
Cassiodorus says, [Variae,] XII. v : ' It is the chief glory of the defemkrs if, while they seem to
be protecting the appointed districts, the farmers do not cease tc cultivate thcir inhcrited possessions.'
Chap. XII] Moderation in Laying Waste and Similar Things 751
be taken as a pledge. In ancient times among the Phrygians and
Cyprians, and later among the Athenians and Romans,1 it was con-
sidered a crime to kill a plough-ox.
V. — Devastation should be refrained from if the thing itself is of no use
in furnishing resources for war
In the fourth place, it happens that certain things are of such
a nature that they are of no value for making or waging war. Such
things reason wishes us to also spare, during the continuation of the
war. Here applies the speech of the Rhodians to Demetrius,2 the
taker of cities, on behalf of the portrait of Ialysus, at it appears in
the Latin translation of Gellius :
What is your reason for wishing to destroy that likeness by setting fire to the temple ?
If you conquer us all, and take this whole city, by your victory you wil! obtain that
portrait also, safe and intact. But if you prove to be unable to conquer us, we ask you
to consider, lest you incur the bad repute of having waged war against the dead Proto-
genes because you were unable to conquer the Rhodians.
Polybius says it is a sign of an infuriated mind to destroy those
things which, if destroyed, do not weaken the enemy, nor bring gain
to the one who destroys them ; such things are temples, colonnades,
statues, and the like. Marcellus, whom Cicero praises, ' spared all
the buildings of Syracuse, public and private, sacred and profane,
just as if he had come with his army to defend them, not to capture
them.' The same author later says : [534] ' Our ancestors left
to them the things which seemed agreeable to the vanquished, but
of small value to us.'
Nicholas
of Damas-
cus [frag.
19, p. 148,
edit. Din-
dorf].
Aelian,
[Var.
Hist.,]
V. xiv ;
Dio Chry-
sostom,
Orations,
lxiv [=p.
592].
[Attic
Nights,]
XV. xxxi.
V[xi].
Against
Verres,
Act II
[IV. liv.
120].
IV [Ix.
134].
VI. — The principle stated is particularly applicable to things that are
sacred or connected with things that are sacred
I. While what has been said holds true of other things of
artistic value, for the reason which we have already given, there is
a particular reason in the case of those things which have been devoted
to sacred uses. Although such things also, as we have said elsewhere,
are public in their own way, and so, according to the law of nations,
are violated with impunity, nevertheless, if there is no danger from
them, reverence for divine things urges 3 that such buildings and
[III. V. 2.]
1 Also in the Peloponnesus ; Varro, On Farming, II [II. v. 4]; Columella, VI, beginning. To these
add Pliny, [Natural History,] VIII. xlv ; Aelian, History of Animals, II, last chapter ; Porphyry,
On Abstaining, II [II. xxviii] ; Vegetius, On the Veterinary Art, III [prolegomena, vil.
2 See on this topic Pliny, Natural History, VIII. xxxviii [VII. xxxviii], and XXXV. x ; and
Plutarch, Demetrius [xxii =p. 898 E]. The same idea is found in the letter of Belisarius which we have
just quoted [III. xii. 2. 3, note].
3 Polybius says in the Excerpta Peiresciana [p. 45] : ' It is a mark of supreme folly to act impiously
toward the gods because you are angry with men.' Rightly, beyond question ; for Severus also, as
Lampridius reports [Life of Alexander Severus, xlix], declared in a rescript : ' It is better that God
1569.27 3 E
752
On the Law of War and Peace
[Book III
Sylvcster,
word
btllum,
in, n
[IV. x
6.]
[XIII.
316 fif.J
XLII [iii.
91.
[Livy,]
XLI\
21.
IV [i. 13].
II [i].
their furnishings be preserved, particularly among those who worship
the same God, in accordance with the same law, even if perhaps
thev disagree in respect to certain dbctrines or points of ritual.
2. Thucydides says that it was the law among the Greeks of
his time ' that those, who made an attack upon hostile territory,
should refrain from doing harm to sacred places '. When Alba was
destroyed by the Romans, Livy says that they spared the temples of
the gods. Of the Romans at the taking of Capua, Silius, in his
thirteenth book, speaks thus :
Lo, through their breasts there creeps a silent feeling
Of sudden awe, and soothes their savage hearts,
That they wish not for fire and torch, nor now
That temples fall in ashes in one pyre.
Livy recounts that it was said in criticism of Quintus Fulvius
the censor, ' That he involved the Roman people in irreverence by
building temples with the ruins of temples, as though the immortal
gods were not everywhere the same, but some were to be wor-
shipped and adorned with the spoils of others.' But Marcius Philippus,
upon arriving at Dium, ordered his encampment to be laid out in
the shadow of the temple itself, in order that nothing in the sacred
place might be profaned. Strabo relates that the Tectosages, who
with others had carried off the treasures from Delphi, consecrated
these at home with an addition, in order to appease the deity.
3. To come now to Christian peoples, Agathias records that the
should be worshipped there in any way at all, than that the place should be turned over to keepers
of cook-shops.'
Pliny, Natural History, XVI. xi [XVI. xl], says of Hannibal : ' He was led by a feeling of reverence
to spare the temple of Diana of Saguntum.' ' And we have not deprived our foreign foes of their temples,'
is a remark found in Appian, Civil Wars, II [II. xix. 140].
The Latin author of the life of Agesilaus [Nepos, Agesilaus, iv] says of him : ' Not only on Greek
soil did he make it a practice to maintain the sanctity of the temples of the gods, but even in the
country of the barbarians he preserved the images and altars with the greatest reverence. He used
to say that he wondered [540] that those who harmed their suppliants were not included in the
number of the sacrilegious, or that those who caused reverence to decline were not punished more
heavily than those who plundered temples.'
Regarding the scrupulosity of Agesilaus in this matter see also Plutarch [Agesilaus, xix = p. 606 a].
The same writer, in his Sulla [xii=p. 459 cd], accords this praise equally to many Romans: 'Some
called to mind Flaminius, others Manius Aquilius and Aemilius Paulus ; of these the former, when
he had driven Antiochus from Greece, and the latter, when they had subdued the kings of Macedon,
not merely spared the temples of the Greeks, but enriched them with gifts and increased their reputation
and sanctity.'
Add also Vitruvius, Book II [II. viii. 8] ; Dio Cassius, XLII [XLII. xlviii] ; Plutarch, Caesar [xxvi
= p. 720 E] ; Brodeau, Miscellanea, V [V. xxix]. Gabaon, the Moor, although not himself a f hristian,
! honour to be shown to the churchefl of the fhristians ; this was contrary to the conduct of the
Vandals, with whom hv. hoped that the God of thc Christians, whoever He might be, would be angry.
vouched for by Procopius, Vandalic War, I [I. viii], who says also, Persian War, II [II. ix], that
Chosroes, a Persian and w>\ I < hrist ian, spared the church <>f t he ( 'hi isl ians of Antioch.
lustinian, as the same author relates, Vandalic War, II [II. ix], did not dare to keep in his
postession the objects which Vespasian had carried off to Rome ErbflO the Temple at Jcrusalem, and
Genserichad found in Rome and transported toAfrioa, Benjamic the Jew, in his itimrary, beaii
•he reverence whi< ifested bv the Mohammedani for the place in which the bones
< hiel and the three companions of Daniel had been interred.
Chap. XII] Moderation in Laying Waste and Similar Things 753
Franks spared the temples, seeing that they were of the same religion
as the Greeks. In fact it has been customary also to spare men on
account of religious edifices, conduct which (not to mention pagan
peoples, which afford many examples, since, in fact, writers call this
custom ' a law common to the Greeks ') in the case of the Goths who
captured Rome x is praised by Augustine as follows :
To this 2 the places of the martyrs and the basilicas of the Apostles, which in the
midst of the sack received the vanquished that fled to them, both Christian and pagan,
bear witness. So far the gore-stained enemy raged ; there the madness of butchery
was stayed. Thither were led by pitying enemies those whom (for * those whom (quibus) '
I should prefer ' who (qui) ',3 for he distinguishes the milder from the more savage)
they had spared outside these places, that they might not be attacked by those who
did not have the same feelings of mercy. Nevertheless, after those, who themselves
elsewhere were savage and raged in the manner of enemies, came to these places 4 where
that was forbidden which was elsewhere permitted by the law of war, all their savage
frenzy was checked, and their desire to take captives was assuaged.
Diodorus,
XIX
[lxxiii].
City of
God, I [ij.
VII. — The principle is applicable also to consecrated things
1. What I have said of sacred things must also be understood
of consecrated things, also of structures erected in honour of the
dead ; for these cannot be violated without contempt for human
feeling, even though the law of nations does accord impunity to the
venting of anger against them. The jurists say that that is the
highest reason which acts in defence of religion. The pious utter-
ance of Euripides in his Trojan Women relates as much to consecrated
as to sacred things :
Mad is the man who cities devastates,
[535] With temples and the Manes' consecrated seats.
For him there waits the doom of like destruction.
Apollonius of Tyana thus interpreted the fable of the giants assaulting
the sky 5 : ' That they did violence to the temples and seats of the
gods.' In Statius, Hannibal is termed sacrilegious because ' he set
torch to the altars of the gods \
1 Under the Arian Alaric. The following notable deed is recorded of him by Cassiodorus, [Variae,]
XII. xx : 4 When King Alaric had received the vessels of the Apostle Peter from his men who brought
them, he held an inquiry ; having learned the state of affairs, he ordered that they should be carried
back to the sacred portals by the hands of those who had carried them off, that the greed, which from
lust of plunder had committed the crime, should expiate its excess by the most lavish devotion.'
2 Isidore has quoted this passage in his Gothic Chronicles, on the year 447.
3 Orosius, in relating the story, VII. xxviii, shows conclusively that this should be the reading
[in which case the English should be : ' Thither they were led by pitying enemies who had spared,' &c.].
4 These same churches of the Apostles were spared by the Goths under Witiges, when they were
besieging Rome, as Procopius testifies, Gothic War, II [II. iv]. Even for barbarians and non-Christians
flight to such places brought protection ; see Zosimus, IV [IV. xl], on the barbarian Tomitani.
Add the Swiss law in Simler [p. 302, ed. Elzevir] ; Nicetas, Alexis, son of Manuel [v] ; and
the same author, Andronicus, I [I. ix], where he blames the Sicilians for having violated the churches
of Antioch.
5 As Diodorus Siculus [Excerpta from Book VII] also interpreted another fable regarding Epopeus.
3E2
Dig. XI.
vii. 43.
[lines
95 ff.]
[Philostra-
tus, Life
of Apollo~
nius, V.
xvi.]
[Silvae,
IV. vi. 82.]
754
On the Law of War and Peace
[Book III
Punic
Wars
[xx. 133].
XLII
[xlviii].
[IV. Iv.
[On
Divina-
tion, I.
xxxvii
Si.]
[XXIX.
xviii. 4.]
XIV
Pxiv].
[XXXI
xxvi. 11
xxx. 4;
xxxi. 3.]
[II. vii ]
[V. xi.]
Scipio, having taken Carthage, bestowed gifts upon his
soldiers, ' excepting ', says Appian, ' those who had sinned against
the temple of Apollo '. As Dio relates, Caesar ' did not dare to
overthrow ' the trophy erected by Mithridates, ' because it was
consecrated to the gods of war \ Marcus Marcellus, being restrained
bv religious scruples, did not touch the things which victory had
made profane, says Cicero in his fourth Against Verres ; and he
adds in the same passage that there are some enemies who in time of
war observe the laws of religion and custom. The same author
elsewhere said that the war waged by Brennus against the shrine of
Apollo was wicked.
The action of Pyrrhus, who plundered the treasures of Proser-
pina, is called by Livy disgraceful and insulting to the gods. Diodorus
characterizes a similar act of Himilco as ' impiety ' and ' a crime
against the gods \ Again, Livy calls the war of Philip wicked, as
though waged against the gods of the upper and the nether worlds ;
also madness, and an aggregate of crimes. Of the same war Florus
says : ' Philip exceeded the rights of the victor in his violence to
temples, altars, and tombs.' * Touching the same affair, Polybius
adds this judgement : ' Who will deny that, to set to work to destroy
what will neither prove useful to us in waging war, nor disadvan-
tageous to the enemy, particularly temples and the statues and
similar ornaments which they contain, is the work of a mind that is
wicked and maddened with rage ? ' In the same passage he does not
accept the excuse of revenge.
VIII. — The advantages which follow from such moderation are pointed
out
1. It is, in truth, not strictly a part of our purpose to inquire
at this point what is advantageous ; we desire rather to restrict the
unrestrained licence of war to that which is permitted by nature, or
to the choice of the better among the things permitted. Neverthe-
less virtue itself, in low esteem in the present age, ought to forgive
me if, when of itself it is despised, I cause it to be valued on account
of its advantages.
In the first place, then, such moderation, by preserving things
which do not delay the war, deprives the enemy of a great weapon,
[i. ixxxii.] despair. There is a saying of Archidamus in Thucydides : ' Think
of the enemy's land as nothing else than a hostage, the better the more
it is cultivated ; therefore it must be spared, so far as is possible,
that despair may not make the enemy harder to conquer.' The
1 A similar act of Prusias is censured by Polybius, whose words are preserved by Suidas on the
word Prusias, and in the Excerpla Peiresciana [De Virluiibus et Vitiis, I, p. 290].
Chap.XII] Moderation in Laying Waste and Similar Things 755
same policy was followed by Agesilaus x when, contrary to the view
of the Achaeans, he let the Acarnanians sow their crops in freedom,
saying that the more they sowed the more desirous of peace they
would be. This is what the satire says : ' For those, who have been
plundered of everything, weapons still remain.' Livy, in relating the
capture of the city of Rome by the Gauls, says : ' The chiefs of the
Gauls had decided that all the houses should not be burned down,
in order that what remained of the city might serve them as a pledge
to break the morale of the foe.'
2. There is the further consideration that, in the course of
a war, such moderation gives the appearance of great assurance of
victory, and that clemency is of itself suited to weaken and to con-
ciliate the spirit. According to Livy, Hannibal did no damage in the
territory of Tarentum : ' It appeared ', he says, ' that this course
was pursued not because of the moderation of the soldiers or their
general, but [536] in order to conciliate the feelings of the
Tarentines.'
For a similar cause Augustus Caesar refrained from pillaging the
Pannonians. Dio gives the reason : ' He hoped that in this way he
wouldwin them over to himwithoutcompulsion.' Polybius [Polyaenus]
says that Timotheus, with that care of which we have already spoken,
above all else ' sought to win great good-will from the enemy them-
selves '. Regarding Quintius 2 and those Romans who were under
his orders, Plutarch, having narrated what we have said above, adds :
' Not long afterward he received the fruit of this moderation ; for,
when he arrived in Thessaly, the cities went over to him. Then in
fact the Greeks who dwelt within Thermopylae also ardently longed
for Quintius ; and the Achaeans, renouncing the friendship of Philip,
entered with the Romans into an alliance against him.'
The state of the Lingones escaped the devastation which they
had dreaded in the war waged by the general Cerealis, under the
authority of Domitian, against Civilis the Batavian and his allies ;
regarding it, Frontinus narrates the following : ' Because the state
had not lost any of its possessions, owing to the fact that contrary
to expectation it had not been laid waste, when brought back to its
allegiance it furnished to him seventy thousand armed men.'
3. Opposite results have attended the opposite policy. Livy
gives an example in the case of Hannibal : * His spirit, inclined to
avarice and cruelty, was prone to despoil what he could not protect.
This policy was destructive both in its inception and in its result.
For it alienated the minds not only of those who suffered undeserved
Xenophon,
Affairs of
Greece, IV
[vi. !$].
[Juvenal,
viii. 124.]
[V. xlii.
1-2.]
XXXIV
[XXIV.
xx. 10].
XLIX
[xxxvii].
III [x. 5].
[Flatni-
ninus, v =
P- 37i d,
cited
above, III.
xii. 3. 1.]
V.iii
[Stratege-
mata, IV.
iii. 14].
XXVI
[xxxviii.
3-4].
1 This is recorded also by Plutarch, Agesilaus [xxii=p. 608 b].
* Naturally Titus Quintius Flaminius [Flamininus].
75^
On the Law of War and Peace
[Book III
Aegidius
Regius, De
Actibus
Superna-
turalibus,
disp. 3i,
dub. 7,
no. 127.
[Plutarch,
AUxander,
xiii=p.
671 B.]
wrong, but of others also, since more persons were aflected by the
example than by the disaster.'
4. Moreover, that which has been observed by certain theo-
logians I hold to be true, that it is the duty of the highest authorities
and commanders, who wish themselves to be regarded as Christians
both by God and by men, to forbid the violent sack of cities and other
similar actions. Such actions cannot take place without very serious
harm to many innocent persons, and often are of little consequence
for the result of the war ; so that Christian goodness almost always,
and bare justice very often, shrinks from them.
Surely the bond which unites Christians is greater than that
which united the Greeks of old, in whose wars a decree of the Amphi-
ctyons provided against the blotting out of a Greek city. And the
ancients relate that Alexander of Macedon repented of nothing that
he had done more than that he had completely destroyed Thebes.
[540
CHAPTER XIII
MODERATION IN REGARD TO CAPTURED PROPERTY
I. — The property of enemy subjects which has heen captured in war is
to be held, up to the amount of their debt
1. The capture of enemy property in a lawful war is not to be
thought devoid of wrong, or exempt from the obligation of restitu-
tion. In fact, if you consider what may justly be done,1 it is not
permissible to take or to hold property of greater value than the
equivalent of the enemy's indebtedness, with this exception, that
over and above that amount one may retain things necessary for
a guarantee. When the danger is over, however, there should be
a restoration, either of the things themselves or of their value, accord-
ing to our discussion in the second chapter of Book II. What would
be permitted in the case of property of persons at peace is much
more permissible in regard to the property of enemies. There
is, then, a certain right of seizure, without a complete right of
ownership.
2. Now since a debt may be due to us either because of an in-
equality of possessions, or as the result of a punishment,2 the property
of enemies may be acquired for either reason, but still with a dis-
tinction. For we have previously said that by a debt of the former
sort not merely the property of the debtor, but also that of his
subjects, according to the accepted law of nations, is made liable, as
though in the case of surety.
This right of the law of nations, indeed, we hold to be of another
kind than that which exists in mere impunity or the external power
of courts of law. For just as he with whom we have completed
a transaction by our private consent acquires not only a legal but
also a moral right to our property, so also a right is acquired by a kind
of common consent, which through a certain force contains in itself
the consent of individuals, in the sense in which a law is called ' a
common agreement of the state \ It is the more credible that such
a basis of right was approved by nations in the kind of affair under
consideration because the law of nations was introduced not only
for the sake of avoiding greater evil but also to secure to each one
his right.
1 [543] See the decision of Pope Innocent, in Bembo, I.
2 The Romans ordered Prusias both to make restitution to Attalus and to pay a penalty in addition.
757
Victoria,
On the Law
of War,
nos. 55,
56.
Cajetan,
Summula
Peccato-
rum, words
belli dam-
num ; Co-
varruvias,
On Sext,
V. ult. 4,
previously
cited, pt.
11, no. n ;
Victoria,
On the Law
of War,
nos. 39
and 41 ;
Molina,
tract. ii,
disp. 117.
758
On the Law of War and Peace
[Book III
III. ii [3].
Sylvester,
word bel-
lum, no.
10; Vic-
toria, no.
51 ; Bar-
tolus, On
Digest,
XLIX.xv.
28.
XXVII
[XXXVII.
xxxv. 7].
II. — The property of enemy subjects which has been captured in war is
not to be held as punishment for the crime of another
But in the other form of indebtedness, which is penal, I do not
see that by the agreement of the nations such a right has been extended
to the property of subjects. Such an obligation imposed upon the
property of others is hateful, and consequently ought not to be
extended further than the practice has clearly been. The advantage,
furthermore, is not the same in the latter as in the former kind of
indebtedness ; for the former consists in goods, but the latter does
not, and so its exaction can be omitted without loss.
This position is not controverted by what we said above about
the Attic law. For according to its provisions men were held liable
not in reality because the state could be punished, but rather to
compel the state to do what it ought to do, that is, to render judge-
ment against the guilty. This obligation arising from duty is to be
referred to the former, not to the latter, sort of indebtedness. For
it is one thing to be under an obligation to punish, and another to
be subject to or liable to punishment, although the latter condition
usually results from failure in respect to the former, but in such a way
that one is distinctly the cause and the other the effect. Therefore
the property of the subjects of enemies cannot be acquired on the
ground of punishment, but only that of those who have themselves
done wrong ; among these are included also the magistrates who fail
to punish the crimes.
III. — Here zve must understand as debt also indebtedness which arises
in time of war. Examples
Moreover the goods of subjects may both be seized and acquired,
not only [542] for the exaction of the original debt which gave
rise to the war, but also for the exaction of indebtedness which
develops subsequently ; this is according to what we said at the
beginning of this book. In such a sense we must take what certain
theologians write, that captures in war are not to be set ofl against
the principal debt ; for it is to be understood that such captures
are an offset up to the point where, according to a sound judgement,
satisfaction has been obtained for the loss occasioned by the war
itself.
Thus in the dispute with Antiochus the Romans, as Livy relates,
held it to be just that the king should pay all the expense which had
been incurred for the war,1 since it was through fault of his that the
1 This is mentioned by Polybius, Selections on Embassies, xxiii. And the Asiatics were condemned
in the same way by Sulla, as Appian records in his Mithridatic War [ix. 61 ff.]. The King of Poland
Chap. XIII] Moderation in regard to Captured Property 759
war had arisen. In Justin is the phrase, ' ready, according to a just
law, to assume the expenses of the war.' In Thucydides the Samnians
are condemned ' to pay the expenses of the war '. And so, frequently,
in other instances. However, what is justly imposed upon the con-
quered may also be justly exacted by a war.
IV. — In this matter it is an obligation of humaneness not to make the
fullest use of one^s right
1. But we must keep in mind that which we have recalled
elsewhere also, that the rules of love are broader than the rules of
law. He who is rich will be guilty of heartlessness if, in order that
he himself may exact the last penny, he deprives a needy debtor of
all his small possessions ; and even much more guilty if the debtor
has incurred the debt by his goodness — for instance, if he has gone
surety for a friend — and has used none of the money for his own
advantage, ' for ', as Quintilian the Father says, ' the peril of a bonds-
man is worthy of commiseration \x Nevertheless so hard a creditor
does nothing contrary to his right according to a strict interpretation.
2. Therefore humanity requires 2 that we leave to them that
do not share in the guilt of the war, and that have incurred no obliga-
tion in any other way than as sureties, those things which we can
dispense with more easily than they, particularly if it is quite clear
that they will not recover from their own state what they have lost
in this way. Here applies what Cyrus said to his soldiers after the
capture of Babylon : ' What you have, you will hold not unjustly ;
but if you do not take away anything from the enemy that will be
an evidence of your humanity.'
3. This also is to be observed. The right over the goods of
innocent subjects has been introduced as a subsidiary means ; and as
long as there is hope that we can obtain what is ours with sufficient
ease from the original debtors, or from those who by not rendering
justice voluntarily make themselves debtors, to come to those who
are free from blame, even though it is granted that this is not in
conflict with our strict right, nevertheless is to depart from the rule
of human conduct.
4. Instances of such humanity are found everywhere in history,
claimed this custom in his favour, according to De Thou, LXXIII [LXXIII. ix], for the year 1581. So
in Homer, Jliad, III [III. 286], the word rirfv is interpreted by the Scholiast as ' an estimation of the
war ; namely half of the property which was in the city.'
1 He adds that a creditor can honourably approach a bondsman only in case he cannot recover
f rom the debtor. The ' honourably ' is well said ; f or it seems that there was a certain ' stigma ' attached
to calling on bondsmen, as Cicero says, Lelters to Atticus, XVI. xv.
2 Ptolemy returned to Demetrius, the son of Antigonus, his tent and other things which served
his personal use, and also the money he had captured, saying that they were not fighting with one
another for objects of all sorts, but for empire and glory. The story is told by Plutarch, Demetrius
[v=p. 891 a]. See also the act of Sancho, king of the Basques, in Mariana, XI. xvi.
XXXIII
[i. 5].
[I. cxvii.]
[Declama-
tions,
cclxxiii.]
[Xeno-
phon,
Training
of Cyrus,
VII. v.
73-]
Aegidius
Regius,
De A ctibus
Superna-
turalibus,
disp. 31,
dub. 7,
no. 117.
760
On the Law of War and Peace
[Book III
Dig. XLI.
i. 16.
Dig. XLI
i.16;
Dig. VI.
i. 15- § 2;
Victoria,
On the Law
ofWar,
no. 40 ;
Sylvester,
word bel-
lum, pt. I,
s *. \
[Liw
xv. 5.]
Arrian,
\Anabasis,]
III >vii].
particularly in the history of Rome. Examples are when lands have
been ceded to the conquered enemy on the condition that they should
pass to the state, that is, that they should fall to the conquered
state ; or when a part of the land was left to the ancient possessor *
as a mark of respect. Thus Livy records that the inhabitants of
Veii were penalized by Romulus with the loss of part of their land.
Similarly Alexander the Macedonian granted to the Uxii under
tribute the lands which they had possessed.
So you may often read that surrendered cities were not sacked ;
and we have said above that it is praiseworthy, and in accordance
with the pious precepts of the canons, to spare not only the persons,
but also the property, of the tillers of the soil, subject at any rate
to tribute. Upon condition of a similar tribute, immunity from war
is usually granted to merchandise also.
1 Appian, Civil Wars, II [II. xix. 140], says: 'Not even from conquered enemies did the ancient
Romans take all their territory, but they divided it with them.' The historians inform us that the
Vandals in Africa, and the Goths in Italy, did likewise.
CHAPTER XIV
MODERATION IN REGARD TO PRISONERS OF WAR
I. — To what extent, in accordance with moral justice, it is permissible to
take men captive
1. In those places where custom sanctions the captivity and
slavery of men, this ought to be limited primarily, if we have regard
to moral justice, in the same way as in the case of property ; with
the result that, in fact, such acquisition may be permitted so far as
the amount of either an original or derivative debt allows, unless
perhaps on the part of the men themselves there is some special
crime which equity would suffer to be punished with loss of liberty.
To this degree, then, and no further, he who wages a lawful war
has a right over the captured subjects of the enemy, and this right
he may legitimately transfer to others.
2. Furthermore in this case also it will be the task of equity
and goodness to employ those [544] distinctions which were
noted above, when we discussed the question of killing enemies.
Demosthenes, in his letter For the Children of Lycurgus, praises Philip
of Macedon for not having enslaved all who were among his enemies.1
' For ', said Demosthenes, ' he did not consider the same punishment
for all either fair or right, but, examining the case in the light of
what each had deserved, he acted in such matters as a judge.'
II. — What is permissible against a slave according to the moral power of
justice
1. Now in the first place it must here be noted that that right,
which originates in a kind of surety on behalf of the state, can nowhere
extend so widely as the right which arises from a crime against those
who become slaves as a penalty. Hence a certain Spartan said that
he was a prisoner, not a slave 2 ; for, if we regard the question properly,
this general right against prisoners captured in a lawful war is equiva-
1 His son Alexander, after capturing Thebes, exempted from slavery both the priests and those
who had not assented to the decrees published against him ; so Plutarch records in his Alexander
[xi = p. 670 e].
2 Philo [That Every Virtuous Man Is Free, vi] says : ' For both fathers have often paid a ransom for
their sons, and sons for their fathers, who had either been violently carried off by brigands or captured
according to the custom of war, but whom the laws of nature, more valid than those which are made
upon earth, declare free.' In fact, as Helen said in the play of Theodectes [in Aristotle, Pohtics, I. vi] :
Who would dare to call me slave,
Me, child of the gods by either line ?
761
Victoria,
On the Law
of War,
no. 41 ;
Decio
[Lessius],
II. v, dub.
4; Covar-
ruvias, On
Sext, V.
ult. 4,
pt. 11,
§";
Molina,
disp. 120
and 121 ;
Valentia,
Disp., iii,
qu. xvi.
[Letiers,
iii. 12.]
[Plutarch,
Laconic
Apothegms,
xl=p. 234
Cj
762
On the Law of War and Peace
[Book III
Plataic
Otation
[xviii =
300 A].
Seneca,
On Bem-
fits, III.
xxii.
On CU-
tncncy, I.
xviii.
[Stobaeus,
Ixii. 28.]
Lettcrs,
xlvii [ij.
[Saturn-
alia, I. xi.]
Colossians,
iv. 1.
EpistUs
[Ephe-
sians],
vi. 9.
VII. xiv.
Theln-
structor,
end [III.
[Son of
Sirach,
XXXi :.
lent to that right which masters have over those who, under constraint
of poverty, have sold themselves into slavery ; only the misfortune
is even more to be pitied of those who have met this fate not by
their own particular act, but through fault of their rulers. c To be
captured by the law of war is a most bitter fate,' as Isocrates bore
witness.
2. This servitude, then, is a perpetual obligation of services
for maintenance that is likewise perpetual. The definition of
Chrysippus well suits this class of slaves : *A slave is a perpetual
mercenary.' The Hebraic Law expressly compares to a mercenary
the man who has sold himself under constraint of want (Deuteronomy,
xv. 18, 40, 53), and in case of his redemption the law wishes his
services to be credited to him just as crops gathered from land that
has been sold would be credited to the former owner (Deuteronomy,
xviii. 50).
3. Therefore that which may be done to a slave with impunity
according to the law of nations differs widely from that which
natural reason permits to be done. From Seneca we previously
quoted this : ' Although against a slave all things are permissible,
there are some things which the common law of living things forbids
to be done against a human being.' This saying of Philemon is to
the same effect :
He, Master, who is born a man, though he may serve
In slavery, still ceases not to be a human being.
Elsewhere Seneca says also : ' They are slaves, nay rather men ;
they are slaves, nay rather comrades ; they are slaves, nay, humble
friends ; they are slaves, nay rather fellow slaves.' What you may
read in Macrobius has clearly the same sense as the saying of the
Apostle Paul : * Masters, render unto your servants that which is
just and equal, knowing that ye also have a Master in heaven.' In
another place the apostle wishes masters not to deal threateningly
with their slaves, for the reason which we have just stated, that they
also have a Master in heaven, who pays no regard to such difTerences
of status. In the Constitutions, which are usually ascribed to Clement
of Rome, we read : 'Beware of commanding a slave or a handmaid in
bitterness of heart.' l
Clement of Alexandria wishes us to treat our slaves as second
selves, since they are human beings no less than we are. He is follow-
ing the saying of the wise Jew : ' If you have a slave, treat him as
a brother, for he is such as you are.'
1 80 also we read in the EpistU of Barnabas [chap. xix] : [549] ' Command not harshly thy
s,ave ' Imaid, who hojx: in Christ, lest thereby thou show that thou dost not fear the Lord
who is cominon tO thee and to them.'
Chap. XIV] Moderation in regard to Prisoners of War
763
III. — It is not permissible to kill an innocent prisoner
Therefore the right, which is called the right of life and death
over the slave, causes the master to have domestic jurisdiction, which,
indeed, is to be exercised with the same conscientiousness as public
jurisdiction. This is what Seneca meant when [545] he said :
' In the case of a slave you must consider, not how much he can suffer
with impunity, but how much is permitted to you by the nature of
justice and goodness, which bids you to spare even prisoners of war
and those who have been bought for a price.'
Elsewhere Seneca says : ' What does it matter by what power
any one is held, if he is held by a power that is absolute ? ' In this
passage he compares a subject to a slave, and says that on different
grounds it is permissible to treat them alike ; a statement that is
certainly most true in respect to the right of taking away their life,
and whatever approximates this. 4 Our ancestors ', says the same
Seneca,1 ' considered our household to be a diminutive state ' ; and
Pliny writes : l For slaves the household is a sort of republic, and, as
it were, a state.' Cato the Censor, in Plutarch's account, did not
inflict punishment upon a slave, who appeared to have committed
a capital crime, until after he had been condemned, and that by the
judgement of his fellow slaves. With this should be compared the
words in Job, xxxi. 13, and following.
IV. — It is not permissible to punish zvith severity
But in regard to minor punishments also, as the beating of
slaves, we must apply fairness, and further, clemency. ' Thou shalt
not oppress him, thou shalt not rule him harshly,' 2 says the divine
law in regard to the Jewish slave — a rule which should now be extended
to all slaves, through extension of the force of relationship (Deu-
teronomy, xv. 17, 45, 53). On this passage Philo 3 comments thus :
Slaves in respect to fortune, indeed, are inferior, but by nature they are equal to
1 Seneca, Letters, xlvii [xlvii. 14].
2 See Moses de Kotzi, Precepts Bidding, 147, 175 and 178, and the Collatio Legum Mosis et Rotna-
norum, tit. iii. Priscus, in the Selections on Embassies [Fragmenta Historicorum Graecorum, IV, p. 88],
where he puts the Romans above the barbarians, says :
' The Romans treat their slaves in a much better fashion, and act toward them as fathers or
teachers ; for to turn them from the things which, according to their customs, are forbidden, they
punish them when they do wrong, like their own sons. And they have not the right to kill them,
as do the Scythians. Moreover there are very many kinds of liberty which the masters bestow
upon them, not only when living, but also at the moment of their death ; whatever disposition they
make of their property when dying has the force of law.'
Add the Law of the Visigoths, VI. i. 12.
8 On Special Laws, II [III. xxxv].
Cyprian writes To Demetrianus [chap. viii] : ' Unless you are served according to your capnce,
unless you are obeyed in compliance with your pleasure, imperiously, and with excessive demands for
subservience, you scourge, you beat, you afflict with hunger, thirst, nakedness, f requently with fetters
and imprisonment, and, wretch that you are, you do not recognize that God is your Lord, since you
yourself so exercise your authority over man.'
On Cle-
mency, I.
xviii.
On Bene-
fits, III.
xviii.
Letters,
xliii
[xlvii. 14].
[Lettets,
VIII. xvi .]
[Plutarch,
Cato the
Elder,
xxi=p.
349 a.]
764
On the Law of War and Peace
[Book III
[On Clem-
ency, I.
xvi. 4.]
Exodus,
xxi. 26, 27.
their masters ; for in the divine law the rule of justice is not that which accords with for-
tune, but that which accords with nature. Hence masters ought not to use their power over
slaves wantonly, nor in consequence of the possession of such power to indulge in pride,
insolence, and savage wrath. For these are manifestations of a spirit that is not calm,
but is ill-controlled and rages against those subject to it with a sort of tyrannical despotism.
* Is it in fact right ', asks Seneca, ' that orders should be given
to a man with greater severity and harshness than to dumb animals ?
v a groom who is a skilful tamer does not frighten a horse with
repeated blows ; for the horse will become timid and balky unless
[i. xvii. 1.] you stroke him with a caressing touch.' And soon after : ' What is
more foolish than to blush to vent one's anger upon yoke-animals
and dogs, while the worst condition is that of man ? '
\\ hence it comes that by the Hebraic Iaw liberty was owed to
a male or female slave not only for the loss of an eye, but also for that
of a tooth,1 wrongfully injured, of course.
V. — // is not permissible to impose upon slaves tasks that are excessively
severe
1. But services also are to be exacted with moderation 2 and
the health of slaves is to receive humane consideration. Besides
other things the Hebraic law aimed to accomplish this result through
the institution of the Sabbath, presumably in order that slaves might
have some time to rest from their labours. There is also a letter
of Gaius Pliny to Paulinus, which begins thus : * I see how leniently
you handle your slaves, therefore I will the more frankly admit to
you with what indulgence I treat mine. I have always in mind that
saying of Homer, " But the stepfather was as kind as a father," and
this is our term for the father of the household (paterfamilias).''
2. In connexion with the same word Seneca also notices the
humanity of the ancients : ' Do you not even see this, how our
ancestors protected masters from all ill-will, and slaves from all
insolence? They called the master the father of the household
(paterfamilias), the slaves members of the household (Jamiliares) '.3
In describing a most excellent king, Dio of Prusa says : ' So far is
he from usurping the title of master over free men, that he refrains
from the use of it even in relation to slaves.'
Exodus,
xx. 10;
xxiii. 12 ;
Deut., x.
14 [xvi.
14).
[Letters,
V. xix.]
[Odyssey,
II. 47 and
234-]
Letters,
xlvii [14].
[Orations,
i=p. 5]
1 Philo, in the passage cited [On Special Laws, III. xxxv], says : ' Thus he will pay a twofold penalty
for his act, in losing both the services and the value of the slave ; in addition to these there is a third
penalty, more severe than these two, that the master is forced to benefit in the highest degree one
whom he hates, and whom he had hoped that hc could always abuse. But the other will have a twofold
solace for the wrong which he has suffered, not only in obtaining his freedom, but also in being freed
from so fierce and savage a master.'
• See chap. xiv, in the letter of the bishops to King Louis, which is included in the Capitulary of
Mon. Gertn. Hisl., Leges, II, vol. 11. p. 437]. Seneca, Letlers, xlvii [xlvii. 5], says :
tmse them, not as men, but as though they were o\< n.' BowCVCT, with re^ard to the leniency
of the Athenians towards slaves see [Pseudo-]Xenophon, On the Constitulion of Athcns [I. ix ff.].
picurus called them f riends ; Seneca, Letters, cvii [cvii. 1].
Chap.xiv] Moderation in regard to Prisoners of War 765
In Homer Ulysses l says that the slaves whom he found faithful
will have in his house the same place as if they were brothers of
Telemachus, his own son. Tertullian declares : < The name of piety
is more gracious than that of power 2 ; the heads of households [546]
are called fathers rather than masters.' Jerome or Paulinus writes to
Celantia : ' So rule and order your household that you may wish to
appear the mother rather than the mistress of your slaves, and from
these exact respect by kindness rather than by severity.'
Augustine says :
The peace of the household was in olden times so directed by just fathers that with
regard to these temporal goods they distinguished the lot of sons from the status of
slaves, but in the worship of God they consulted with equal care the interests of all
members of their household. This is in accordance with the prescription of the order
of nature, so that from this source the name ' father of the household ' arose and became
so widely current that even those who rule unjustly are glad to be called by this name.
However, those who are true fathers of the household aid all in their household just
as sons to worship and propitiate God.
3. In commenting on the verse of Virgil, ' Now, boys, close up
the rivulets ', Servius observed a similar instance of piety in the use
of the word ' boys ' (pueri), which men applied to slaves. In the same
spirit the Heracleots called their Mariandynian slaves ' gift-bearers
(Sw pocfyopoL) ',3 thus ' sparing the bitterness of the name ', as the
ancient interpreter Callistratus remarked in a note on Aristophanes.
Tacitus praises the Germans, because their slaves were treated as
tenant farmers. Theano says in a letter : ' This is the just way to
use slaves ; not to let them be worn out with toil, nor be too weak
to endure labour because of poverty.'
Odvssey,
V [XXI.
215 ff.]-
[Apology,
xxxiv.]
[Jerome,
Letters,
cxlviii.
25.]
City of
God. XIX.
[On
Eclogues,
VI. 14.]
[Germany,
XXV.]
[Letters,
iii. pr.l
VI. — Under what circumstances the savings ofa slave belong to the master,
and under what circumstances to the slave
1. As we have said, maintenance is due to the slave 4 for his
work. Cicero says : ' Those make wise suggestions who bid us use
slaves just as men who serve for hire, declaring that work is to be
On Duties,
I [xiii. 41].
1 Whose fatherly kindness toward himself Eumaeus proclaims, Odyssey, XIV [XIV. 138 ff.].
2 This is also observed by Cyprian, Testimonies, III [III. lxxii], To Quirinus : ' Masters should be
more gentle to their slaves, when they have embraced the faith ' ; and he proves this by the words
of the Apostle Paul to the Ephesians [vi. 9]. Lactantius, V. xv, writes : ' There is no reason why we
mutually apply to one another the name of brothers other than this, that we believe that we are equals.
For if we measure all human beings not according to the body, but according to the spirit, although their
bodily condition may be different, yet [550] they are not slaves to us ; but we both consider them, and
call them brothers according to the spirit, fellow slaves in religion.'
Augustine, On the Cusloms of the Catholic Church, X. xxx [I. xxx. 63], says : ' You teach slaves to
cleave to their masters, not so much from the necessity imposed by their condition, as from delight in
their duty. You make masters easily appeased by their slaves, from regard to the supreme God, who
is indeed their common master, and more prone to advise than to coerce.'
Add also Isidore of Pelusium, Letters, I. cccclxxi. Refer to what we have just quoted from Priscus
[p. 763, n. 2].
3 Athenaeus, VI. xviii [VI. Ixxxiv].
4 Son of Sirach [Ecclesiasticus], xxxiii. 25, says : ' Bread, discipline and toil, are for the slave.'
766
On the Law of War and Peace
[Book III
Economics,
I. v.
[On
Farming,
V. ii.]
On Bene-
fits, III
[xxi. 2].
[Oh
Terence's]
Phormio,
i. i u
Dig.
i. 40.
Thucv-
dides, VII
[Ixxx\
Diodorus,
XIII [xix].
[On
Benefits,
III. xix.]
Institutes,
IV. vii.
Dig. XV.
i. 5- § 1.
required of them, but that they are to be furnished with what they
deserve.' Says Aristotle : ' The slave's pay is his maintenance.'
And Cato : * Let him see to it that his slaves fare well, that they
are neither cold nor hungry.'
* There are some things ', says Seneca,1 * which a master should
furnish to his slave ; as rations and clothing.' The rations included
four bushels of grain monthly, which, according to Donatus, were
supplied to slaves. Marcianus the jurist says that there are some things
which it is necessary for the master to supply to a slave, as tunics and
the like. The cruelty of the Sicilians,2 who killed the Athenian
prisoners by starvation, is condemned by historians.
2. Seneca, moreover, in the passage cited proves that in relation
to certain matters the slave is free, and that he has also the means of
conferring a benefit, if he does something which exceeds the measure
of his duty as a slave, something which is tendered not at a command,
but voluntarily, where there is a transition from the obligation of
service to the affection of a friend ; this Seneca explains at length.
It is in harmony with these ideas that if a slave, as in Terence,3 in
his leisure hours, has saved something by cheating his own soul, or
by his industry, this is in some way his own.
Theophilus does not do badly to define the slave's savings
(peculium) as ' a natural patrimony ',4 as you might define * the
union of slaves (contubernium) ' as ' a natural marriage \ Ulpian
also calls the slave's savings a diminutive patrimony. It does not
matter that the master can at his discretion take away or lessen the
patrimony, for if he does this without cause he will not do what is
just. By cause, however, I understand not only punishment, but
also the master's necessity ; for the advantage of the slave is sub-
ordinate to the advantage of his master, even more than the interests
of citizens are subordinate to that of their state. On this point
1 The same author, On Tranquillity [viii. 8], writes : ' The slaves ask for clothing and food.'
In Procopius, Gothic War, III [III. xvii], the Romans say to Bessas : ' At least give us food, since we
are your captives, I shall not say sufficient food, such as our need demands, but enough to ward off death.'
Chrysostom comments, On Ephesians, v. 21 [Homily XIX, v] : ' When he performs his bodily
services, you indeed feed him, and see to it that, in addition to his food, he has clothing and shoes, and
this, too, is a sort of servitude ; for unless you also perform this service of yours, he will not render his,
but will be free, and no law will compel him to render his services, if he is not nourished.'
* Also that of Isaac Angelus to the Sicilian prisoners, as is recorded by Nicetas, Book I [Isaac
Angelus, I. iii], who quotes also the letter of the king of Sicily to the Greek empcror on this subject.
* Phormio, I.i [I. i. 44].
* Eumaeus in the Odyssey, XIV [XIV. 63 f.], says :
Such things as a generous master gives to a bondsman,
The ties of wedlock, land, and a habitation.
Ulysses himself, Odyssey, XXI [XXI. 214 f.], says to Eumaeus and Philaetius:
To each of you shall I give wives and possessions,
And houses near to my own.
Varro [On Farming, I. xvii. 7] says of slaves : ' They are rendered more zealous in their work by more
generous treatment, by greater hberality in respect to food or clothing, or by the remission of a task,
or by the permission to pasture on the estate some cattle of their own.'
Chap.xiv] Moderation in regard to Prisoners of War 767
Seneca l appositely remarks : ' It is not true that the slave has nothing
merely because he will have nothing if his master is unwilling that
he should have anything.'
3. Hence it is that a master does not seek to recover anything
which was owed to a slave during slavery, and which was paid to the
slave after emancipation. The reason, as Tryphoninus says, is that
the ground for indebtedness or non-indebtedness is seen naturally in
the claim of restitution ; the master may naturally be indebted to
his slave. And so we read that, just as clients [547] have made
contributions for the use of patrons, and subjects for the use of
kings, so slaves have made contributions for the use of their masters,
as on the occasion of giving a dowry to a daughter, or ransoming
a captive son, or some similar occurrence.
Pliny, as he himself records in his letters, even allowed his slaves
to make wills of a sort, that is to divide, donate, and leave their
belongings within the household. We read that among some peoples
slaves were allowed an even fuller right of acquiring property, just
as we have elsewhere said that there are several degrees of slavery.
4. Among many peoples the laws have reduced even the
external right of masters to this moral justice, which we are explain-
ing. For among the Greeks slaves who had been too harshly treated
were permitted ' to demand their sale ', and at Rome to take refuge
at statues, or to seek the aid of the magistrates against cruelty or
starvation or intolerable wrong. Furthermore it will happen, not
from a strict interpretation of law, but from humanity and kindness,
that at times a slave will be given his freedom, which is due to him
on the ground of long or very great services.
5. After slavery was introduced by the law of nations, there
followed the benefit of emancipation, says Ulpian. Let us take as
an example the lines of Terence :
From a slave I made you my freedman,
Because like a free man you served.2
Salvianus says that it was a frequent custom for slaves to be given their
liberty, even when their service had not been of the best, at any rate
if it had not been wicked ; he adds, l and they are not forbidden to
take from their masters' house those things which they have acquired
when in a servile condition '. Many instances of this sort of kindness
appear in the martyrologies.
On Bene-
fits, VII.
iv.
Dig. XII.
vi. 64.
Dionysius,
II [x].
Letters,
VIII. xvi.
II. iii [II.
v. 27 ff.].
Instilutes,
I. viii. §2.
Dig. I. i.
4-
[Andria,
l. i. 10 f.]
[Against
Avarice,]
III [vii].
1 In the same passage of the same author is this : * Is there any doubt that the slave, along with
his savings, belongs to his master ? But yet he can give a gift to his master.'
2 Thus the manuscripts, correctly. Varro [Servius, On the Aeneid, VIII. 564] relates that in the
grove of Feronia it was customary to say to slaves : ' Let the well-deserving slaves be seated. ^ Let them
arise free.' In certain places it was the custom to set slaves free when they had acquired eighc times
their purchase price.
1569.27 3 F
768
On the Law of War and Peace
[Book III
Deut., xv.
13-
[Cato the
Elder, v
= P-338E.]
Sylvester,
word ser-
vitus, § 3 ;
Fortunius,
On Dig., L
i.4J Aegi-
dius Re-
gius, De
Actibus
Superna-
turalibus,
disp. 31,
dub. 7,
no. 119.
In this respect also we must praise the lenity of the Hebraic
law, which ordained that the Jewish slave should be completely
emancipated after the lapse of a fixed time, and not without gifts.1
The prophets bitterly complain of the disregard of this law. Plutarch
censures Cato the Elder for selling slaves who were worn out from
old age, unmindful of that common nature in which all men share.
VII. — Whether it is permissible for slaves to attempt to escape
The question here arises, whether it is right for a person who
has been made a prisoner in a just war to attempt to escape ; we are
not dealing with him who has deserved this penalty by his own
crime, but with him who has come into such a condition by a public
act. The sounder view is that it is not right, because, as we have
said, by the common consent of nations such a captive owes his
services on behalf of his state.
This view nevertheless is not to be understood as valid in a case
where intolerable cruelty imposes the necessity of escape upon the
captive. On this subject one may consult the response of Gregory
of Neocaesarea, xvi.
II. v [29].
Lessius,
II. v,
dub. 5.
Deut., xv.
13 [xx. 14].
VIII. — Whether the children of slaves are bound to the master^ and to
what extent
1. In another connexion we raised the question, whether and
to what extent the offspring of slaves are bound to the master by
moral justice. This question should not be passed over here,
because it particularly concerns prisoners of war. If the parents
had merited death by their own crimes, then for the preservation of
their lives the ofTspring which was expected of them could be bound
to slavery, because otherwise these would not be born. As we have
said elsewhere, parents may in fact sell their children into slavery if
otherwise they would face starvation. Such is the right which God
granted to the Jews over the descendants of the Canaanites.
2. However, children that were already born, no less than their
parents, as part of the state could have been made liable for a debt
of the state ; but with regard to those who have not yet been born
this reason does not seem sufficient, and another appears to be required.
Either the obligation in question may arise from the express consent
of the parents, along with the necessity of supporting the children,
and then it may exist without end ; or it may arise from the mere
furnishing of sustenance, in which case it exists only up to the time
[548] when their services shall have cancelled all that has been
expended for them. If any further right over the children is given
1 Custom interpreted this as requiring a gift of not less than thirty shekels; see Precepls
Bidding, 84.
Chap.XlV] Moderation in regard to Prisoners of War 769
to their master, apparently it arises from the civil law, which to
masters is more generous than just.
IX. — What is to be done in countries where the enslavement of prisoners
of war is not customary
1. Among those peoples who do not avail themselves of the
right of slavery which arises from war, the best course will be to
exchange prisoners ; the next best, to release them at a price that is
not unfair. What that price is cannot be set forth in exact terms ;
but humanity teaches that it should not be raised to the point where
its payment would place the prisoner in want of the necessities of
life. Such indulgence is in fact granted by the laws of certain coun-
tries to many who have fallen into debt by their own acts.
In some places the price put upon captives is fixed by agreements
or by custom ; as the sum of a mina among the Greeks of antiquity,1
and at present among soldiers at a month's pay. Plutarch relates
that formerly wars between the Corinthians and Megarians were
waged ' humanely and as became peoples of the same race'. If any
one were taken prisoner, he was treated by his captor as a guest and,
upon his promise to pay his ransom, dismissed to his home ; and from
this arose the name ' war-guests (Sopv^evot) '.
2. The saying of Pyrrhus, which is praised by Cicero, reveals
a nobler spirit :
I ask for myself not gold,2 nor shall you pay me a ransom ;[...]
With steel, not with gold, on each side nght we for life. [. . .]
To them whose valour the fortune of war has spared,
Their liberty I am resolved to grant.
There is no doubt that Pyrrhus believed that he was waging a just
war ; yet he thought that he ought to spare the liberty of those
whom worthy reasons had led into war.
Xenophon lauds a similar act of Cyrus ; Polybius, the course
taken by Philip of Macedon after his victory at Chaeronea ; Curtius,
the conduct of Alexander in relation to the Scythians ; Plutarch,
that of King Ptolemy and Demetrius, who rivalled each other fully
as much in their kindness toward prisoners as in military operations.
Dromichaetes, king of the Getae,3 made Lysimachus, who had been
taken prisoner, his guest, and by causing him to witness at the same
time both the poverty and the civility of the Getae he induced
Lysimachus to prefer to have the friendship of such people rather
than their enmity.
1 [55 J ] In the war between the French and Spaniards in Italy, a cavalryman was ransomed f or a
quarter of a year's pay. But this did not include leaders of detachments or higher officers, nor those
who fell into the enemy's power in a pitched battie or in the storming of a city ; Mariana, XXVII. xviii.
2 Menander Protector [frag. 60, p. 115, edit. Dindorf] praises the like generosity of the Christian
Emperor Tiberius toward the Persians ; Mariana, that of Sisebut [VI. iii], and also of Sancho, king
of Castile, Book XI [XI. v].
• This is also recorded by Diodorus Siculus, in the Excerpta Peiresciana [pp. 257 and 258].
3 F 2
[Reading
largiente
f or largi-
entibus.]
Greek
Questions
[xvii = p.
295 b].
[On
Duties,
I. xii. 38.]
Training
of Cyrus,
II [III. i.
28 ff.].
[Polybius,
V.x.]
[Curtius,
VII. ix.
18.]
[Plutarch,]
Demetrius
[v=p.
891 4],
Strabo,
VII [iii. 8].
CHAPTER XV
Victoria,
OntheLaw
of War,
nos. 38
and 59.
[Letlers,
II. iv =
p. 409.]
Jugurthine
War [Con-
spiracy of
Catiline,
xii. 4].
[On Pub.
Ad.,Lvi.2.]
Republic
[Politics],
VII. xiv
and xv ;
Nic. Eth.,
On Duties,
I [xxiii.8o].
[I. xi. 35.]
Thomas,
m.40,
arti,ad3;
Wilhelmus
Matthaei,
De Bello,
} rcquis.,
qu. 7.
[Justin,
I. i. 3]
NODERATION IN THE ACQUISITION OF SOVEREIGNTY
I. — To what extent moral justice permits sovereignty to be acquired
The equity which is required, or the humanity which is praised,
in respect to individuals, is so much more required and praised in
respect to peoples or parts of peoples in the degree that wrong or
kindness toward a large number of persons becomes more notable.
As other things may be acquired in a lawful war, so there may be
acquired both the right of him who rules over a people and the
right which the people itself has in the sovereign power ; only in so
far, however, as is permitted by the measure of the penalty which
arises from a crime, or of some other form of debt.
To these reasons should be added the avoidance of extreme
danger. But this reason is very often confused with the others,
although both in establishing peace and in making use of victory it
deserves particular attention for its own sake. It is possible to forgo
other things from compassion ; but, in case of public danger, a sense
of security which exceeds the proper limit is the reverse of com-
passion. Isocrates wrote to Philip : ' The barbarians must be sub-
jugated to a point which will enable you to make your country
perfectly secure.'
II. — It is fraiseworthy to abstain from the exercise of the right to acquire
sovereignty over the vanquished
1. Sallust says of the ancient Romans : ' Our ancestors, being
most scrupulous persons, used to deprive the vanquished of nothing
save the power to do harm.' This is a view which could worthily
have been uttered by a Christian ; and with it accords another
sentence of the same writer : ' Wise men wage war to secure peace,
and endure toil in the hope of ease.' More than once Aristotle said :
' War was originated for the sake of peace, and business for the sake
of leisure.' Cicero supports the same idea, and his is this exalted
maxim : ' Let war be so undertaken that nothing else than peace
may seem to be sought after.' From the same author comes this
similar saying : ' So wars are to be undertaken for this reason, that
men may live in peace without being wronged.'
2. These views differ in no respect from those which theologians
of the true faith set forth to the effect that the end of war is the
removal of the things which disturb peace. Before the time of Ninus,
as we began to say elsewhere, following Trogus, it was the custom
77°
Chap. XV] Moderation in Acquisition of Sovereignty
771
to protect rather than to advance x the frontiers of one's empire ;
each one's realm was limited to his own country ; kings sought not
empire for themselves but [552] glory for their peoples, and,
being content with victory, they abstained from acquiring dominion.
So far as he can, Augustine recalls us to this condition : ' Let
them see to it, nevertheless, that it may not concern good men to
delight in the extent of their dominion.' 2 He adds also this : ' It
is a greater good fortune to live in harmony with a good neighbour
than to subdue a bad neighbour who wages war on us.' Furthermore,
the prophet Amos severely reproves in the Ammonites this zeal for
extending their borders by armed force.
City of
God, IV.
xv.
Amos, i.
13-
III. — Either by mingling them with the conquerors —
To this ideal of old-time innocence the closest approach is in
the wise moderation of the ancient Romans. ' What would our
empire be to-day ', says Seneca, ' had not salutary foresight mingled
the vanquished with the conquerors ? ' ' Our founder Romulus ',
says Claudius in Tacitus, ' displayed so much wisdom that on the
same day he had many peoples as enemies, and then as citizens '.
He adds that the cause of the downfall of the Lacedaemonians and
Athenians was nothing else than the exclusion, as foreigners, of those
whom they had conquered. Livy says that the Roman power grew
through the admission of enemies into the state. Examples are to
be found in the history of the Sabines, Albans, Latins, and other
Italian peoples ; until, at last,
Caesar in his triumph led the Gauls, and into the Senate, too.
Cerialis, in his speech to the Gauls, which is found in Tacitus,
declares : ' You yourselves often command our legions ; you your-
selves govern these and other provinces ; there is nothing shut off
from you or closed to you.' And shortly after : ' Then love, then
cherish, the peace and life which we, conquerors and conquered,
enjoy by the same right.' At length came that most admirable
step ; in accordance with a constitution of the Emperor Antoninus
[Caracalla] all those within the Roman world were made citizens of
Rome, as Ulpian says. In consequence, as Modestinus declares,
Rome became the common fatherland. And of Rome Claudian
wrote :
To the peace-promoting customs of this city,
Due it is that we are all one people.
1 The Emperor Alexander said to Artaxerxes the Persian : ' Each one should remain within his
own borders, causing no disturbance, and no one, elated by an uncertain hope, should undertake wars,
but each should rest content with his own possessions ' [Herodian, VI. ii. 4].
2 See Cyril, Against Julian, Book V, where he praises the Jewish kings for the reason that they were
content with their own frontiers.
On Anger,
II. xxxiv
[4].
Annals, V
[Xl.xxiv].
I [VIII.
xiii. 16].
[Suetoni-
us, Caesar,
lxxx.]
[Histories,
IV. lxxiv.]
Dig. I. v.
17.
Dig. L. i.
33-
[On the
Consulship
of Stilicho,
III. 154,
159.]
772
On the Law of War and Peace
[Book III
Seneca,
Trojan
Womcn
[725 ff.].
Aelian,
[Various
History,]
IV. v.
Herodo-
tus, VII
[III. xv].
[Xeno-
phon,
Training
of Cyrxis,
III. i.
33 «.]
[Seneca.]
On Cle-
mcncy, I.
xxi [3].
[Polybius,
V. ix.l
Livy,
XXXII
WII.
liv. 26].
Mithrida-
tic Wars
[xvii. 114].
[Livy,
XXXIII.
xii. 9.]
Annais,
XII [xix].
IV, — Or by leaving the sovereign pozver to those who had held it —
1. Another form of moderation in victory is to leave to con-
quered kings or peoples the sovereign power which they had held.
So Hercules with Priam :
Vanquished by his young foe's tears,
* Take up ', he said, * the ruler's reins ;
Sit elevated on your father's throne,
But with better faith the sceptre wield.'
Hercules, also, after conquering Neleus, committed the kingdom to
Neleus's son, Nestor. Similarly the Persian kings used to leave the
royal authority to conquered kings ; thus Cyrus to the Armenian
king. Thus Alexander left royal power to Porus.1 Seneca 2 praises
this practice of ' taking nothing but glory from a vanquished king '.
Polybius celebrates the goodness of Antigonus, who, although he
had Sparta in his power, left the Spartans * their ancestral con-
stitution and their freedom ' ; and by this act, it is narrated in the
same passage, Antigonus obtained the highest praises throughout
Greece.
2. In the same way the Romans allowed the Cappadocians to
use whatever form of constitution they wished, and to many peoples
their freedom was left after a war. ' Carthage is free and has its own
laws,' say the Rhodians to the Romans after the second Punic War.
Pompey, says Appian, ' left some of the conquered peoples free '.3
When the Aetolians declared that there could be no sure peace
unless Philip of Macedon were driven from his kingdom, Quintius
said that they had stated their opinion without thinking of the
Roman custom of sparing the vanquished. [553 ] He added : ' Who-
ever is mildest to the conquered has the loftiest mind.' In Tacitus
we read : ' From the vanquished Zorsines nothing was taken away.'
V. — Sometimes by the imposition of garrisons —
Sometimes, with the concession of sovereign power, provision
is made for the security of the victors. Thus Quintius ordered 4
that Corinth should be restored to the Achaeans, yet upon the
condition that there should be a garrison in Acrocorinthus ; also
1 And so Pepin to Aistolf the Lombard.
* The whole passage deserves examination. It contains also this notable saying: ' This is
to triumph even in accordance with one's victory, and to bear witness that one has found nothing
among the vanquished which was worthy of the victor.' Pompey lef t to Tigranes a part of his realm ;
Eutropius, VI [VI. xiii].
■ For a knowledge of their condition see Polybius, SeUclions on Embassies, vi [xix] ; Suetonius,
in his life of Caesar, where he discusses Gaul [Divus Julius, xxv]. Guilleman has also something worth
reading in his history of Switzerland [I. viii].
^ieless this was afterwards remitted; Polybius, Selections on Embassies, xi; Plutarch,
Flaminius [Flamininus, x = p. 374 c].
Chap.XV] Moderation in Acquisition of Sovereignty
773
that Chalcis and Demetrias should be retained, until the anxiety
with regard to Antiochus should be over.
VI. — Or even by tributes and similar burdens
Often the levying of tributes also has for an object not so much
the restitution of the expenses that have been incurred as the security,
in the future, of both victor and vanquished. Cicero says of the
Greeks : ' At the same time let Asia reflect on this, that if it were
not held by this Empire there is no disaster of foreign war or domestic
strife that would fail to assail it ; and since, moreover, this Empire
can in no way be maintained without taxes, let Asia with a part of
its produce contentedly purchase for itself eternal peace and rest.'
In Tacitus Petilius Cerealis speaks to the Lingones and other
Gauls on behalf of the Romans in the following words : * Although
we have been so often provoked, this is the only burden we have
laid upon you by right of victory, wherewith we might keep the
peace ; for there is no quiet for the nations without armed forces,
and armed forces cannot be had without pay, and pay cannot be had
without tribute.'
To this same problem apply also the other conditions which we
mentioned when discussing unequal treaties — the surrender of arms,
of a fleet,1 of elephants, not to maintain an army ready for battle
nor an armed force.
Letters to
his Brother
Quintus, I.
i[".§34]«
Histories,
IV [lxxiv].
II. xv. 7.
VII. — The advantage derived from such moderation is pointed out
1. Moreover to leave to the vanquished their sovereign powers
is not only an act of humanity, but often an act of prudence also.
Among the institutions of Numa there is praised that which aimed
to exclude any shedding of blood from the rites of Terminus, indicat-
ing that nothing is more useful in securing quiet and a sure peace
than to remain within one's own frontier. Florus well remarks : ' It
is more difncult to keep provinces than to win them ; they are won
by force, they are retained by justice.'
Not unlike this is the comment in Livy : ' It is easier to gain
things one by one than to hold all together ' ; also, the remark oi
Augustus in Plutarch : ' A greater task . . . than winning a great empire
is the governing of an empire already in existence.' The ambassadors
of King Darius said to Alexander : ' A foreign empire is a dangerous
thing ; it is difncurt to hold what you may not be able to take. Some
things it is easier to conquer than to defend ; by Hercules, how much
more readily do our hands receive than retain ! '
Plutarch,
Rotnan
Questions,
xv [= p.
267 c].
[IV. xii.]
XXXVII
[xxxv. 6].
[Apo-
thegms,
p. 207 D.]
[Curtius,
IV. xi. 8.]
Regarding the Persians, see Agathias, Book IV [IV. ix].
774
On the Law of War and Peace
[Book III
[Aristides,
In Praisc
of Romc,
P- 353 f-]
Livv,
XXVIII
[XXXVI.
xxxii. 6].
[III. x =
690 E.]
[Prcfacc,
vii.]
Valerius
Maximus,
IV. i [10].
2. This difficulty of holding an empire together is what Calanus
of India * and, before him, Oebares the friend of Cyrus explained
by the comparison of a dried hide, which rises up in one spot as soon
as you press another spot with your foot ; and Titus Quintius in
Livy by comparison with a tortoise,2 which is immune to blows
when gathered into its shell, but exposed and weak as soon as it has
thrust out a part of its body. Plato, On Laws, Book III, applies to this
situation the saying of Hesiod : ' The half is better than the whole.'
Appian observes that not a few peoples who wished to come
under the rule of the Romans were rejected by them ; while for
other peoples kings were appointed. In the judgement of Scipio
Africanus, in his time Rome already possessed so much that it would
be greedy to seek for more ; and she would be richly fortunate if she
lost nothing of what she held. The formula for making the lustral
sacrifices, in which the gods were entreated to make the resources of
Rome better and greater, he altered in such a way that he prayed
that they might preserve Rome's resources in safety forever.3
Thucy-
dides, I
[xix] ; Iso-
crates, Pan-
athcnaic
Oration
[P- 243].
Demo
sthenes,
Onthc
Ckcrso-
ncsus ;
Diodorus,
XIII and
XV.
[Stobaeus,
xliii. 27.]
Annals,
VI [xlii].
VIII. — Examples ; zvith a discussion oja change in theform of govern-
ment among the vanquished
The Lacedaemonians, and, at first, the Athenians, claimed for
themselves no sovereignty over the cities they had captured. They
wished merely that these should use a form of government modelled
on their own ; the Lacedaemonians, in fact, a government under
the influence of the aristocrats, the Athenians one subject to the will
of the people, as we learn from Thucydides, Isocrates, Demosthenes,
and even from Aristotle himself in the fourth book of his Politics,
[554] chapter xi, and the fifth book, chapter vii. This very thing
is indicated in a comedy by Heniochus, a writer of those days, in the
following manner :
Then drew near to them two women,
Who turned all things to dire confusion ;
The one called Aristocracy, Democracy the other,
Through whose solicitation the cities were driven to madness.
A similar course is that which, according to Tacitus, was pursued
by Artabanus at Seleucia : ' He placed the commons under the
aristocracy ', he says, ' in accordance with his own interest : for the
1 Plutarch has this in his Alexander [lxv — p. 701 e].
* Plutarch [Flamininus, xvii — p. 378 d] relates it thus : ' When he wished to dissuade the Achaeans
who were seeking the island of Zacynthus, he said that they would run into danger if, like a tortoise,
they extended their heads beyond the Peloponnese.'
" [556], The consul Claudianus Julianus makesuse of this story in his letter to Pupienus and
Balbinus [Capitolinus, Life of Maxitnus and Balbinus, xvii]. It was imitated by Augustus, who, as Dio
[LIV. ix] says, * was praised because he wished to acquire no new territory, but thought that that,
which was already held, was enough.*
Chap.XV] Moderation in Acquisition of Sovereignty
775
rule of the people is close to liberty, but the despotism of the few
is nearer to the licence of a king.' But the question whether changes
of this sort make for the safety of the conqueror does not belong to
our investigation.
IX. — If sovereignty is to be assumed, it is right to leave a part of it to
the conquered
If it is not safe to refrain from assuming any dominion over the
conquered, the action may still be limited in such a way that a portion
of the sovereign power may be left to them or to their kings. Tacitus
calls it the practice of the Roman people ' to have kings also as instru-
ments of subjection \ To the same author it seemed that ' Antiochus
was the richest of the subject kings '. ' Kings subject to the Romans '
is the phrase in the Commentaries of Musonius ; also in Strabo, near
the end of Book VI. Lucan writes :
And all the royal purple which serves the Latin sword.1
Thus among the Jews the sceptre remained in the Sanhedrin,
even after the confiscation of Archelaus. Evagoras, king of Cyprus,
as we read in Diodorus, said that he was willing to be subject to the
Persian king, but as one king to another. Alexander at diff erent times
offered to the conquered Darius this condition, that Darius should
rule over others, but should obey Alexander.2
We have elsewhere spoken of the ways of dividing the sovereign
power. To some peoples a part of their govemmental power has
been left, as to former possessors a part of their lands.
[Agricola,
xiv.]
Histories,
II [lxxxij.
XV [ix].
I. iii. 17 ;
III. viii. 3.
X. — 0/*, certainly, some degree of liberty should be left to the conquered
But when all sovereignty is taken away from the conquered with
respect to their private affairs and minor public matters it is still
possible to leave to them their own laws,3 customs, and officials.
Thus in the pro-consular province of Bithynia the city of Apamaea
had the privilege of governing itself as it pleased ; 4 we are so in-
1 See the Panegyric addressed to Maximian [Eumenius, chap. xj.
8 Such were also in Italy, in former times, the kings under the authority of other kings ; Servius,
On the Aeneid, X [X. 655]. So in the Persians [24] of Aeschylus there are mentioned :
Kings, subjects of the great king.
So also among the Turks, on the authority of Leunclavius, Book XVIII.
3 Philo, in the Embassy to Gaius [xxiii], says : ' Augustus gave no less attention to preservmg
the laws peculiar to each people than to those of the Romans.'
4 See Pliny, Letters, xciii, and the following letter of Trajan in Book X [X. xcii and xciii]. Under
the Persians Sinope had a democratic form of government ; Appian, Mithridatic Wars [xii. 83, but
referring to Amisus, not Sinope]. Such was the shadow of liberty among the Greeks under Roman rule.
See Cicero, Letters to Atticus, VL i ; Pliny, Letters, VIII. xxiv. The Cypriots could not be summoned
out of their island ; Cicero, Letters to Atticus, V. xxi [V. xxi. 6].
776
On the Law of War and Peace
[Book III
LetUrs, X.
lvi, lxxxiv,
cxi and
cxiii
xlvii,lxxix,
cxii and
cxiv].
Ibid.,
xciii ;.\.
xcii].
[Embassy
to Gaius,
xxxvi.]
[Jewish
War, V.
ix. 4 ; VI.
ii. i.]
formed by the letters of Pliny, who says also that the Bithynians
have their own officials and their own senate. And so in Pontus the
state of the Amiseni [Amisus] enjoyed its own laws through the
kindness of Lucullus. The Goths left the Roman law to the con-
quered Romans.
XI. — Some degree of liberty should be left to the conquered, especially in
the matter of religion
i. A part of this indulgence is not to deprive the conquered of
the exercise of their inherited religion,1 except by persuasion. This
Agrippa, in his speech to Gaius, which Philo quotes in his report of
his embassy, proves to be as devoid of harm to the victor as it is gratify-
ing to the vanquished. In Josephus, both Josephus himself and the
Emperor Titus reproach the rebels of Jerusalem with the fact that,
through the generosity of the Romans, the rights they enjoyed in the
exercise of their worship were so complete that they could exclude
foreigners from the Temple, even upon pain of death.
2. If, however, a false religion is practised by the vanquished,
the victor will do right in taking steps to prevent the oppression of
the true faith, as Constantine did, when he crushed the faction of
Licinius, and, after him, the Frankish and other kings.
Xenophon,
Training
of Cyrus,
IV [iv. io].
[Jugur-
thine War,
cii. 6.]
Agricola
txiii].
XII. — At any rate the conquered should be treated with clemency ; and
why
i. Last of all is this word of caution. Even under the fullest
and, as it were, despotic sovereignty, the conquered should be treated
with clemency, and in such a way that their advantage should be
combined with that of the conquerors. Cyrus bade the conquered
Assyrians be of good cheer, saying that theirlot would be the same
as it would have been if they had only changed [555] their king ;
that they would retain their houses, their lands, their rights over
their wives and children, which they had had up to that time ; indeed,
if any one should wrong them, he and his men would be their avengers.
In Sallust we read : ' The Roman people thought it better to
gain friends than slaves ; and held it safer to rule over willing than
over compulsory subjects.2 The Britons, in the time of Tacitus,
' It is better that some God should be worshipped there than none,' as we have just said [III.
xii. 6. 1, note] in the words of Severus. So the Goths, in Procopius, Gothic War, II [II. vi], say that
thcy have ccnstrained no one to join their faith.
1 In Thucydides, V [IV. xix], the Lacedaemonians say : ' And so we think that great enmities
may thus be transformed into lasting concord, not if any one, in avenging himself and making use of
a more favourable situation, imposes upon cthers the necessity of swearing to unequal terms, but if,
when he could do this, he handles the matter as temperately as possible, displaying not less justice
than courage in conquering.'
Chap.XV] Moderation in Acquisition of Sovereignty 777
would patiently have endured the levy and tribute and the additional
burdens of the Roman domination if they had not been subjected
to wrongs ; these they bore impatiently, for they were subdued to
the point of obedience, but not yet to that of slavery.
2. The ambassador from Privernum, when asked in the Roman Livy,
senate what sort of a peace the Romans were to expect from his SJd.
people, said : c If you should have given to them a good peace, then
you may expect it to be reliable and perpetual ; if a bad one, brief.'
As the reason, there was added : * Do not believe that any people,
or any man, will remain longer than is necessary in a condition with
which he is dissatisfied.'
Similarly, Camillus said that that authority was the most secure Livy,
with which those who obeyed were pleased. The Scythians said to ^11 txm*
Alexander : c There is no friendship between master and slave ; even Curtius,
in time of peace the rights of war are maintained.' Hermocrates, in ™ ^ '
Diodorus, declares : c It is not so glorious to conquer as to make xni[xix].
a mild use of victory.' Tacitus has a wholesome opinion regarding [Annais,
the use of victory : c Wars have noble endings, whenever they are ' ^
terminated by pardoning.' In a letter of the dictator Caesar are the [Cicero,
words : * Let this be a new method of conquering, to fortify our- LAeuilus°
selves with mercy and generosity.' ix. viic.]
CHAPTER XVI
MODERATION IN REGARD TO THOSE THINGS WHICH BY THE LAW
OF NATIONS HAVE NOT THE RIGHT OF POSTLIMINY
Dig. IX.
iv. 27, § x.
Dig. XLI.
i. 20.
On Bent-
fits, V. xii.
Digest,
XLIX. xv.
27.
Aegidius
Regius, De
Actibus
Superna-
turalibus,
disp. 31,
dub. 7,
ZIO. 122.
[Epistola]
Canonica,
X.
I. — Moral justice requires that the things which our enemy has taken
jrom another in an unlawful war shall he restored
1. We have explained above to what extent things become the
property of the captors by a lawful war. From such things we must
deduct those which are recovered by right of postliminy ; [557]
for these are regarded as not having been captured.
But we said that that which was taken in an unlawful war must be
restored, not only by those who took it, but also by others to whom
the thing has come in any manner whatsoever. For no one, the
authorities of the Roman law declare, can transfer to another more
right than he himself has. This Seneca briefly explains thus : ' No
man can give what he does not have.' The person who first took
the thing did not have moral ownership (dominium internum), there-
fore the person who obtains his right from him will not have it ;
hence the second or third possessor takes an ownership which, for
the sake of explanation, we call legal (externum), that is, an ownership
which has the advantage of being everywhere protected by the
authority and power of the courts. Nevertheless, if the possessor
uses this advantage against him from whom the thing was taken by
an act of injustice, he will not act rightly.
2. We may here cite as pertinent the opinion which the worthy
jurists gave with regard to a slave who had been captured by robbers
and had afterward reached the enemy ; it was true that he had been
stolen, and neither the fact that he had been in the power of the
enemy nor that he had returned by postliminy nullified the right of
the original owner. On the basis of the law of nature a similar opinion
must also be rendered with regard to him who was captured in an
unlawful war, and afterward, through an unlawful war, or from
other causes, came into the power of another ; for in moral justice
there is no distinction between an unlawful war and brigandage.
Gregory of Neocaesarea l gave answer in conformity with this opinion
when he was consulted regarding the fact that certain men of Pontus
had acquired goods of their fellow citizens which had been captured
by barbarians.
1 [559] He is followed by Petrus, De Poteslale Principis, chapter iii, qu. 4, and Bruningius, De
Homagiis, concl. 241.
77«
Chap.xvi] Moderation in case of No Postliminy
779
III [X. I].
[IV. xxix.
4-]
II. — Examples
1. Such things, then, must be restored to those from whom
they were taken ; and we often see that this has been done. Livy,
after relating that the Volscians and Aequians were defeated by
Lucius Lucretius Tricipitinus, says that the spoil was exposed in the
Campus Martius, in order that each might take home what belonged
to him within three days. The same author, having told of the rout
of the Volscians by the dictator Posthumius, adds : ' Part of the
booty was given back to the Latins and Hernicans upon their recogniz-
ing what was theirs ; part the dictator sold at auction.' Elsewhere
he has : ' Two days were allowed to the owners for identifying their
property.' Livy, again, after describing the victory of the Samnites
over the Campanians, writes : ' What most delighted the victors was
the recovery of seven thousand four hundred prisoners of war, and
a huge booty belonging to their allies ; and the owners were sum-
moned by proclamation to identify and recover their belongings on
an appointed day.' Afterward he recounts a similar act on the part
of the Romans :
The Samnites attempted to seize the Roman colony of Interamna, but did not
take the city. After pillaging the fields, they were thence driving off another booty
composed of both men and cattle and also the captured colonists, when they fell in with
the consul returning from Luceria, and not only lost their spoil, but, owing to being in
disorder in a long and encumbered column, they were themselves cut to pieces. The
consul by proclamation called together the owners of Interamna to identify and recover
their property, and leaving his army there, he set out for Rome because of the meeting
of the assembly.
In another passage, dealing with the spoil which Cornelius Scipio
riad taken at Ilipa, a city in Lusitania, the same writer speaks thus :
' This was all set out outside the town, and owners were given the
right to identify what was theirs. The rest was turned over to the
quaestor to be sold ; what was realized therefrom was divided among
the soldiers.' After the battle fought by Tiberius Gracchus near
Beneventum, we further read in Livy : ' All the booty, except the
prisoners, was given to the soldiery ; there were also excepted such
cattle as their owners should identify within thirty days.'
2. Of Licius Aemilius, who "conquered the Gauls, Polybius
writes : ' He restored the booty to those from whom it had been
seized.' Plutarch and Appian relate that Scipio did likewise,1 when
upon capturing Carthage he found there many temple offerings
1 Also Diodorus Siculus, in the Excerpta Peiresciana [p. 345].
Valerius Maximus, I. i. 6 [V. i. 6] : ' The humanity of the later Afncanus also was notably and
widely in evidence. For when he had taken Cartbage he sent letters around to the cities of Sicily,
that they might send representatives to recover the ornaments of their temples which had been carned
off by the Carthaginians, and to see that these should be restored to their former places.'
i. 12.]
XXIV
[xvi. 5].
Histories,
II [xxxi].
Plutarch,
Apothegms
[=p. 200 b] ,
Appian,
Punic
Wars
[xx. 133].
780
On the Law of War and Peace
[Book III
[II. XXXV.
86.]
[IV.
xxxiii.73.]
XXXI
[xv. 5].
VIII
[xiii.nf.].
Strabo,
XIII
[XIV. i.
26].
which the Carthaginians had carried thither from the cities of Sicilv
and other places.
Cicero in his oration Against Verres, dealing with the administra-
tion of justice in Sicily, says : ' The Carthaginians had at one time
taken the town of Himera, which was a particularly famous and rich
city of Sicily. [558] When the war was ended, Scipio, who thought
it worthy of the Roman people that our allies, in consequence of
our victory, should recover what was theirs, took pains that, so far
as possible, what had been taken by Carthage should be restored to
all the Sicilians.' The same writer gives a sufficiently lengthy dis-
cussion of this act of Scipio when treating of the statues in his oration
Against Verres.
The Rhodians restored to the Athenians four of their ships
which had been taken by the Macedonians and recaptured. So
Phaneas the Aetolian thought it right that what the Aetolians had
had before the war should be returned to them ; Titus Quintius
did not deny that this would be just, if it were a question of cities
taken in war,1 and if the Aetolians had not broken the terms of the
alliance. The Romans even restored to their ancient condition
the treasures once dedicated at Ephesus, which kings had made
their own.
II. x. 9.
Getusis,
xiv. 16.
III. — Wheiher anything may be deducted from that which is restored
1. If a thing of the sort under consideration has come into
any one's hands by way of trade, will he be able to charge the person
f rom whom it was originally taken the price which he has paid ?
It is consistent with what we have said elsewhere that the possessor
may charge as much as the recovery of the thing despaired of would
have been worth to him who had lost it. But if such an outlay may
be recovered, why not also an evaluation of the labour and danger,
just as if by diving some one had recovered another's property which
was lost in the sea? Pertinent to this question, it seems to me, is
the story of Abraham, when he returned to Sodom as victor over the
five kings. ' He brought back all the goods ', says Moses ; that is,
the goods which, as he had previously related, had been captured by
the kings.
2. Again we are not to attribute to any other cause the arrange-
ment which the king of Sodom proposed to Abraham, that he should
restore the prisoners, but keep the other things for himself in return
1 Pompev restored Paphlagonia to Attalus and Pylaemenes ; Eutropius, VI [VI. xi].
In the alliance of the Pope, the Emperor Charles V, and the Venetians against Soliman, it was
Egreed that each party should recover what had been his; Paruta, VIII [IX = p. 650, ed. 1605]. In
consequence, when the Spaniards had taken Cephallenia, they restored it to the Venetians.
:ient to this question is also a passage in Anna Comnena [XI. vi], dealing with Godefroy.
Chap. XVI] Moderation in case of No Postliminy
781
for his toil and danger. Abraham, however, being a man not only
of a pious but also of a lofty mind,1 wished to take nothing at all for
himself ; but from the things that were recovered (for this narrative,
as we have said, relates to them) as though by his own right he gave
a tenth to God, deducted the necessary expenses, and desired that
a share be assigned to his allies.
IV. — Even subject peoples or divisions of peoples are to be restored to
those to whom they belonged, if they have been unjustly taken over
by the enemy
Furthermore, just as goods are to be restored to their owner, so
peoples also,2 and divisions of peoples, are to be restored to those who
had the right of dominion over them, or even to themselves, if they
had been independent prior to suffering the unjust violence. Thus
we learn from Livy that, in the time of Camillus, Sutrium was
recovered and restored to the allies of the Romans. The Lacedae-
monians restored the Aeginetans and the Melians to their cities.
The Greek states, which had been invaded by the Macedonians,
were restored to freedom by Flaminius.
Flaminius also, in a conf erence with the ambassadors of Antiochus,
declared it was right to set free the cities of Asia, which bore Greek
names and which had been captured in war by Seleucus the great-
grandfather of Antiochus, which had been lost and recovered by the
same Antiochus ; * for ', he said, ' the colonies were not sent to
Aeolia and Ionia to be subject to a king, but to increase the race,
and to spread a very ancient people throughout the world.'
Livy,
VI [iii.
10].
Livy,
XXXIII
[xxxii].
Xenophon,
Affairs of
Greece, III
[II.ii.Q].
XXXIV
[lviii. 13].
V. — At what time the obligation to make restoration ceases
Usually the question is raised also regarding the period of time
in which the moral obligation to restore a thing may cease. But in
1 This observation is well made by Iacchiades, On Daniel, v. 17. Sulpicius [Sulpicius Severus,
Sacred History, I. v] says of Abraham : ' He restored the rest to those from whom it had been seized.'
Ambrose, on the Patriarchs, I [On Abraham, I. iiij, writes: *And so, since he sought not for himself
a reward from men, he received it from God.'
Very similar to this was the conduct of Pittacus and Timoleon. ' Pittacus of Mitylene, when with
the consent of all he was offered the half of the territory recovered, turned his mind away from the
gift, because he deemed it unworthy to dim the glory of his valour by the greatness of the spou" ;
Valerius Maximus, VI. v. i. Of Timoleon Plutarch [Comparison of Timoleon^ and Aemihus Paulus,
ii = p. 277 b] says : ' Under such circumstances it is not base to receive, but it is better not to receive ;
such self-restraint implies a certain superabundance of virtue, which shows that it can do without
those things which are permitted.'
Cf. what was previouslv said, in II. xiv. 6 and III. iv. 1. _ ^
2 The exiles from Saguntum after six years were restored by the Romans. Antony ordered that
all those who had been made slaves in the war with Cassius should be Hberated, and that property
should be restored to its owners. Likewise Calatrava was restored by the king of Castile and others
to the soldiers from whom it had been taken by the Moors ; Mariana, XI [XI. xxv]. Cf. what is above
in III. x. 6.
782 On the Law of War and Peace [Booklll
the case of citizens under the same government the question is
answered according to their laws, provided that these admit a moral
right and do not consist in a legal right only ; this may be gathered
from the language and scope of the laws by a careful examination.
In the case of those, however, which are foreign in relation to one
another, the question is to be answered in accordance with conjecture
11. iv. as to abandonment, which we have discussed elsewhere, so far as our
purpose requires.
VI. — What is to be done in a doubtjul case
If, however, the lawfulness of the war is seriously open to ques-
cicero, On tion, the best course will be to follow the counsel of Aratus of Sicyon,1
Srilf '82] wno on tne one s^e Persuaded the new possessors to accept payment
and to give up what they held, and on the other persuaded the former
owners to consider it more advantageous to have paid to them the
value of their property than to recover it.
1 This was done by King Ferdinand, as Mariana records, XXIX. xiv.
CHAPTER XVII
ON THOSE WHO ARE OF NEITHER SIDE IN WAR
I. — From those who are at peace nothing should be taken except in case
of extreme necessity, and subject to the restoration of its value
It might seem superfluous for us to speak of those who are not
involved in war, since it is quite clear that no right of war is valid
against them. But since in time of war on the pretext of necessity
many things [560] are done at the expense of those who are at
peace, especially if they are neighbours, we must briefly repeat here
what we have said elsewhere, that the necessity which gives any right
over another's property must be extreme ; furthermore, that it is
requisite that the owner himself should not be confronted with an
equal necessity ; that even in case there is no doubt as to the necessity
more is not to be taken than the necessity demands ; that is, if
retention is sufBcient, then the use of a thing is not to be assumed ;
if the use is sufhcient, then not the consumption ; if consumption is
necessary, the value of the thing must then be repaid.
II. ii. 10.
II. — Examples of self-restraint and precepts
1. When Moses and his people were pressed by the extreme
necessity of passing through the land of the Edomites, he said, first,
that he would pass along the royal road, and would not turn off into
the ploughed fields or vineyards, and if he should have need of their
water he would pay its price. Famous Greek and Roman generals
assumed the same obligation. In Xenophon, the Greeks who were
with Clearchus promised the Persians that they would march through
without causing them any damage ; and if they would have supplies
for the Greeks to purchase these latter would not seize things to eat
or drink from any one.
2. Dercyllides, as the same Xenophon relates, * led his forces
through peaceful territory in such a way that his allies suffered no
loss.' Livy says of King Perseus : ' He returned to his kingdom
through Phthertis, Achaia, and Thessaly, without causing damage or
injury to the lands through which he marched.' Of the army of Agis
of Sparta, Plutarch says : ' They were a marvel to the cities as they
traversed the Peloponnesus quietly, without injury and almost without
noise.' x
[Numbers,
xx. 17 ££.]
[Anabasis,
Il.iii.
23 ff.].
[Greek
History,
III. i. 10.]
[XLI.
xxii. 6.]
[Agis, :
= p.
801 D.]
1 Plutarch offers the same testimony to Titus Quintius Flaminius [Flamininus , v=p. 371 D].
1569.27 3 G 783
784
On the Law of War and Peace
[Book III
II [XXV].
Forthe
Manilian
Law [xiii.
39]-
Stratege-
mata,
II. xi [7].
[AUxander
Severus,
1.]
[Latinus
Pacatus,
Panegyric,
xxxii.]
[On the
Consulship
of Stilicho,
I. 163 ff.]
Velleius says of Sulla : ' You would think that he had come into
Italy not to averige in war, but to establish peace, with so great quiet
did he lead his army through Calabria and Apulia into Campania,
showing exceptional care for crops, fields, cities, and men.' Of
Pompey the Great Cicero x affirms that ' his legions came to Asia in
such a way that not only the hands of so vast an army, but even
its footprints could be said to have done no harm to any one at
peace '. Of Domitian Frontinus thus speaks : * When he was estab-
lishing forts in the lands of the Ubii, he ordered that the value should
be paid for the crops of the places which he incorporated in the
fortifications ; and by the report of this act of justice he bound to
himself the allegiance of all.'
Of the Parthian expedition of Alexander Severus, Lampridius
writes : ' He conducted it with so great discipline, demanding so
high respect for himself, that not soldiers, but senators, might be
said to be passing by ; wherever the soldiers were on the march, the
tribunes were under arms, the centurions respectful, the soldiers
gentle. Himself, however, the provincials received as a god, because
of these great and numerous benefits.' Of the Goths,2 Huns, and
Alans, who were in the service of Theodosius, the Panegyrist says :
' There was no rioting, no disturbance, no plundering, as is usual
with barbarians ; indeed, whenever there was a shortage of supplies
they bore the want with patience, and by their abstinence they
augmented the grain which they diminished by their number.'
Claudian attributes the same conduct to Stilicho :
So great the peace, so great the fear, the guardian of right,
'Neath your command, that no plundering of vineyard nor of grain field
Cheated the farmer of his harvest.
Similar conduct is attributed by Suidas to Belisarius.3
1 Also Plutarch [Potnpey, x = p. 624 a] : ' When he heard that his soldiers were acting too
licentiously on the march he put a seal on their swords ; and, if any one broke this, he was punished.'
* With regard to the moderation of this people we find much in Cassiodorus, as in [Variae,] V. x,
and II. xiii [V. x, xi and xiii]. Besides, in letter xxv of the same book [V. xxvi] is this: 'Lay waste
neither the fields nor the meadows of the landholders, but hasten with all self-restraint, that your
coming may cause us delight. Because for this we willingly undergo the expenses imposed by the
army, that civilization may be preserved intact by those under arms.' Also in IX. xxv : ' No losses
to the owners were occasioned by his arms.'
* This virtue in Belisarius is often acclaimed by Procopius, the companion and witness of his
actions. Seehis noble speech, which is pertinent here, delivered to his soldiers in Sicily when 1
on the way to Africa, and the description of his march through Africa, in the Vandalic War, I [I. xii
and xvii]. I shall cite in full the following passage from the Golhic War, III [III. i] :
He acted with such care and forethought toward the peasants that none of them suffered violence
while Belisarius led the army. On the contrary, all became rich wherever he arrived with a large
body of troops ; [563] for they sold their goods to the soldiers at their own price. And when the
crops were npe he took anxious care that they should not be spoiled by the cavalry ; in addition,
no one at all was allowed to touch fruit hanging on the trees.
See tlve similar praise of the Germans in their expedition to the Holy Sepulchre, in Nicetas,
On Manuel Cotnnenus [I. iv]. Gregoras also lauds the same conduct in the Venetians, IX [IX. v]:
* There was no one who was not struck with admiraticn for the discipline of the Venetians, and their
Chap.xvil] On those who are of neither side in War
785
3. This condition was brought about by scrupulous painstaking
in providing for necessities * by the regular payment of troops, and
by vigour in enforcing discipline, a rule of which you hear in Am-
mianus 2 : ' The lands of those at peace must not be trampled upon.'
In Vopiscus, Life of Aurelian, we read : ' Let no one seize another's
fowl ; let no one touch a sheep ; let no one carry off a bunch of grapes,
let no one destroy grain, let no one requisition oil, salt, or wood.'
Likewise in Cassiodorus : ' Let them live with the provincials under
the civil law ; [561] let not the spirit of him, who feels that he is
armed, become insolent, because our army as a shield should guarantee
quiet to the Romans.' These rules may be supplemented by the
saying of Xenophon, in Book VI of the Anabasis : c A friendly
city should not be compelled to give anything against its will.'
4. In the light of these sayings you would aptly interpret that
admonition of a great Prophet, nay, a greater than a Prophet :
' Extort from no man by violence, neither accuse any one wrong-
fully ; 3 and be content with your wages.' 4 Similar to this is the
order of Aurelian in the passage of Vopiscus which has been cited :
' Let each one be satisfied with his allowance, let him live by the
spoil of the enemy, not by the tears of the provincials.'
No one should think that, while it is fine to say these things,
they cannot be carried into effect ; for neither would the Divine
Man urge them, nor the wise authors of laws prescribe them, if they
believed that such rules could not be enforced. In fact, we must
grant that that can be done which we see done.5 Therefore we have
adduced examples, to which may be added the notable example
which Frontinus records of Scaurus,6 that an apple-tree, which the
magnanimity combined with justice. For no one of their army wished to go out and take anything
without paying the price.'
1 Pliny, Natural Hisiory, XXVI. iv : ' Else why have the Roman generals always devoted their
first attention to commerce when waging war ? '
Cassiodorus, [Variae,] IV. xiii : ' Let him have something to buy, that he may not be compelled
to think of what he can carry off.' He has something similar in V. x and xiii.
» See also Book XXI [XXI. v. 8].
3 You might translate ' from pillage ', in which sense this word is taken in the Greek version in
Job, xxxv. 9 ; Psalms, cxviii. 121 [cxix. 122] ; Proverbs, xiv. 33 [xiv. 31], xxii. 16, cxviii. 3 [xxviii. 3] ;
Ecclesiastes, iv. 1 ; and also Levilicus, xix. n. The Vulgate translator of Luke, xix. 8, renders the
same Greek word by defraudare (' defraud ').
4 On this passage of Luke, Ambrose [On Luke, II. lxxvii] says: 'For this purpose pay was
instituted for military service, that the soldier, in seeking his subsistence, might not act as a robber.'
This is copied by Augustine in his sermon xix, On the Words of Our Lord according to Matthew
[Sermones, lxxxii. 1, really not the work of Augustine ; see Appendices, V. lxxxvii. 1, Migne].
On this subject there are notable edicts in Gregory of Tours, II. xxxvii ; in the Capitularies of Charles
and his successors, V, tit. clxxxix ; in the Councils ofFrance, II ; in the Capitularies of Louis the Pious,
II. xiv, and in vol. III ; in the Council of St. Macra.
Add the Bavarian Law, II. v. Gunther [Ligurinus, VII. 299 ff.] thus reports a law of Frederic I :
If one has burned the farms or homes of folk
At peace, with shaven head he will be marked,
And after many blows from camp will he be chased.
* And so Guicciardini states, in Book XVI.
• On the severity of Niger, because of the theft of a cock, see Spartianus [Pescennius Niger, x].
3 G2
XVIII
[ii. 7].
Aurelian
[vii].
[Variae,
VII. iv.]
[VI.ii.6.]
Luke. iii.
14.
[Aurelian,
vii.]
IV. i
[Stratege-
mata, IV.
iii. 13].
786
On the Law of War and Peace
[Book III
XXVIII
[xxiv. 9].
XL [xxii.
10-11] .
Annals,
XII [xlix].
Histories,
III [ii].
[I. xxi.
56.]
Aegidius
Regius, De
Aciibus
Superna-
turalibus,
disp. 31,
dub. 7,
no. 95.
survey had included in the Hnes of the camp, was left on the following
day, when the army had marched off, with its fruit untouched.
5. Livy, after relating that the Roman soldiers in the camp at
the Sucro had behaved themselves with too great licence, and that
some of them had gone at night to pillage in the neutral land about
them, adds that everything was done through the greed and licence
of the soldiers and nothing according to regulation and discipline.
There is another notable passage of the same writer, when he describes
the march of Philip through the land of the Denseletae :
Thev were allies, but from lack of supplies the Macedonians plundered their territory
just like that of the enemy ; for, plundering on all sides, they first devastated homesteads,
and then even some villages, to the great shame of the king, when he heard the voices
of his allies calling in vain upon the gods, who are the guardians of treaties, and upon
his own name.
In Tacitus, the reputation of Pelignus is one of shame, since he
plundered allies rather than enemies. The same author observes that
the soldiers of Vitellius were in idleness throughout the Italian
municipalities, and a source of dread to their hosts alone. Also, in
Cicero's passage on the city praetorship, in his Against Verres, is
this accusation : ' You gave your attention to the plundering and
harassing of the peaceful towns of the allies, and of our friends.'
6. At this point I cannot pass without mention the opinion of
the theologians, which I think is very true, that a king, who has not
paid what he owes to his soldiers, is responsible for the losses which
in consequence have ensued, not only to the soldiers, but also to his
own subjects and their neighbours, whom the soldiers under pressure
of want have treated badly.
III. i.
I [XXXV].
III. — What the duty of those at peace is towards belligerents
1. On the other hand it is the duty of those who keep out of
a war to do nothing whereby he who supports a wicked cause may
be rendered more powerful, or whereby the movements of him who
wages a just war may be hampered, according to what we have said
above. In a doubtful matter, however, those at peace should show
themselves impartial to either side in permitting transit, in furnish-
ing supplies to troops,1 and in not assisting those under siege. In
Thucydides the Corcyreans say that it is the duty of the Athenians,
if they wish to be impartial, either to prevent the Corinthians from
hiring troops on Attic soil, or to allow them the same privilege.
Philip, king of Macedon, was charged by the Romans with having
violated his treaty in two ways, both in having done injury to the
1 See the noble example in Paruta, Book VIII.
Chap.xvil] On those who are of neither side in War
787
allies of the Roman people, and in having aided the enemy with
soldiers and money.
The same points are stressed by Titus Quintius in a conference
with Nabis :
* Still ', you say, ' I have not, strictly speaking, done violence to you and your friend-
ship and alliance.' How many times do you wish me to prove that you have done this ?
I do not wish to do so at greater length, and I shall sum up the gist of the matter. By
what things, then, is friendship violated ? In very truth by these [562] two things,
by treating my allies as enemies, and by allying yourself with the enemy.
2. In Agathias we read that an enemy is one who does what
the enemy wishes ; and in Procopius, that he is counted in the ranks
of the enemy * who supplies a hostile army with what is directly
useful for war. Demosthenes long ago said : ' He who creates and
devises the means whereby I may be captured is my enemy, even if
he does not strike me nor hurl a javelin at me.' Marcus Acilius told
the Epirotes, who had not supported Antiochus with troops, but
were accused of having sent him money, that he did not know whether
he should class them as enemies or those at peace. The praetor
Lucius Aemilius censured the people of Teos for having aided the
fleet of the enemy with supplies, and for having promised them wine ;
adding, that he would treat them as enemies unless they gave the
same to the Roman fleet. And there is recorded a saying of Caesar
Augustus : ' A state, which receives an enemy, loses the right of
peace.'
3. It will even be of advantage to make a treaty with either
party that is waging war, in order that it may be permissible to
abstain from war while retaining the goodwill of either, and to
render to each the common duties of humanity. We read in Livy :
6 Let them desire peace with either side, as befits impartial friends ;
let them not intervene in the war.' Archidamus, king of Sparta,
when he saw that the Eleans were leaning to the side of the Arcadians,
wrote a letter containing only this : ' It is a good thing to remain
quiet.'
[Livy,
XXXIV.
xxxii. 14.]
III [IV.
iv].
Gothic
War, I
[iii].
Philippics,
III [ix. 17
= P- 115].
[Livv,]
XXXVI
[xxxv. 9].
XXXVII
[xxviii. 2].
Plutarch,
Brutus
[v=p.
ioiid].
XXXV
[xlviii. 9].
[Plutarch,
Apoth.,
p. 219 a.]
1 On the other hand he rightly says that we must call ally and friend not only him who takes
his post beside us in battle, but also him who openly supplies all the things necessary for waging war ;
this is in the letter of Amalasuntha to Justinian [Procopius, Golhic War, I. iii].
36-]
Plutarch,
Roman
Questions,
xxxix [=
P- 273 T],
and
Marcellus
[Comp. of
Pehpidas
and Mar-
cellus, iii =
P- 317 D].
On Anger,
Digest,
1*5
22).
[564] CHAPTER XVIII
OX ACTS DONE BY INDIVIDUALS IN A PUBLIC WAR
I. — The question whether it is permissible for individuals to do harm
to a public enemy is discussed with special regard to the law of
nature, the law of nations, and municipal law
1. What I have heretofore said applies chiefly to those who
either possess the supreme command in war or are carrying out
public orders. We must also consider what is permissible for an
individual in war, not only according to natural and divine law, but
also according to the law of nations.
In his iirst book On Duties, Cicero says that the son of the Censor
Cato had served in the army of the general Pompilius, but that the
legion in which he was serving was disbanded; nevertheless, since
the youth from love of warfare remained in the army, Cato wrote
to Pompilius that he ought to oblige the young man to take the
military oath a second time, if he wished him to remain in the army.
Cato gave as a reason that after the first oath had been cancelled
his son could not lawfully fight with the enemy. Cicero adds the very
words of Cato from a letter to his son, in which he warns the youth
to avoid engaging in battle, for the reason that it is not right for one
who is not a soldier to fight with an enemy.
Similarly we read that Chrysantas, a soldier of Cyrus, received
praise because, in an attack on the enemy, he drew back his sword
as soon as he heard the signal for retreat.1 Also Seneca said : ' He
who disregards the signal for retreat is called a worthless soldier.'
2. But those are deceived who think that the principle thus
stated has its origin in the law of nations. This becomes clear if you
consider that, just as any one is permitted to seize the property of
an enemy, so also, as we have shown above, it is permissible to kill
an enemy. For according to the law of nations enemies are held to
be entitled to no consideration. The advice of Cato, therefore,
comes from Roman military discipline, which, according to Modes-
tinus, contained the provision that one who had not obeyed orders
should be punished with death, even if what he had done turned
out successfully. But one who had fought an enemy outside the ranks
and without the command of the general was understood to have
disobeyed orders, as the instructions of Manlius teach us. The
reason is that, if such disobedience were rashly permitted, either the
outposts might be abandoned or, with increase of lawlessness, the
788
1 Scc Xenophon, Training ofCyrus [IV. i. 2].
Chap. XVIII] On Acts done by Individuals in a Public War 789
army or a part of it might even become involved in ill-considered
battles,1 a condition which ought absolutely to be avoided.
Consequently Sallust, describing the Roman discipline, says :
' In war punishment is more often inflicted on those who have fought
against the enemy contrary to orders than against those who have
withdrawn from battle too slowly when recalled.' A certain Spartan,
who was on the point of slaying an enemy, heard the signal for
retreat and held back his stroke, giving as the reason, ' It is in fact
better to obey the commander than to kill an enemy.' The reason
why a discharged soldier cannot kill an enemy is thus stated by
Plutarch : he is not bound by the military laws, by which those who
are going to fight ought to be bound. According to Arrian, Epictetus,
referring to the deed of Chrysantas just mentioned, said : ' It seemed
to him so much better to obey the will of his commander than his
own.'
3. If, however, we regard the law of nature and moral justice,
it is apparent [565] that in a lawful war any person is allowed to
do whatever he trusts will be of advantage to the innocent party,
provided he keeps within the proper limits of warfare ; nevertheless
he is not allowed to make captured property his own, because nothing
is due to him, unless indeed he is enforcing a legal penalty according
to the common law of mankind. From our previous discussion we
can understand how this last right has been restricted by the law of
the Gospel.
4. Now, a command may be either general or particular.
A general command is exemplified in the words which the consul
was accustomed to utter in the presence of the Romans in case of
an uprising : ' Let those who wish the safety of the state follow me.'
Individual subjects, moreover, in addition to the right of self-pro-
tection, are sometimes given the right to kill in case this is to the
advantage of the state.
[Catiline,
ix. 4.]
[Plutarch,
Apoth.,
lxxi = p.
236 E.]
[Roman
Questions,
xxxix=p.
273 E-]
II. vi [15].
II. xvii
[II. xx.
10].
Servius,
Onthe
Aeneid,
VIII
[line 1].
Code, III.
xxvii. 1
and 2.
II. — What in respect to the enemy is permitted by moral justice to those
who are serving in the army, orjitting out ships, at their ozvn expense
1. A special command may be given not only to those who
receive pay, but also to those who serve at their own charges ; and
— a more important consideration — to those who support a part of
the war with their own expenditures, such as those who fit out and
maintain ships at private cost. Such contributors, in lieu of pay,
are generally allowed to hold captured property as their own, as we
have said elsewhere. How far this practice may be extended without
III. vi
[24].
1 Thus Avidius Cassius gave, as a reason for the sentence he imposed, ' that there mi^ht have
been an ambuscade ' ; so Vulcacius [Avidius Cassius, iv].
790 On the Law of War and Peace [Booklll
the violation of moral justice and love, is a proper question for dis-
cussion.
2. Justice has regard either for the enemy or for the state
itself with which an agreement is made. We have said that posses-
sion of all things, which can support war, may be taken from the
enemy for the sake of security, but under the condition of making
restitution. Indeed absolute ownership may be acquired in com-
pensation for that which is due to a state waging a lawful war, either
from the beginning of the war or from a later act, whether the pro-
perty belongs to the hostile state or to individuals, even though the
individuals themselves be guiltless ; the property of the guilty may
be taken away and acquired by the captors as a means of imposing
a penalty. Enemy goods will therefore become the property of those
who are conducting at their own expense a part of the war, so far as
this affects the enemy, provided that the limit which I have men-
tioned be not exceeded ; whether the limit has been reached ought
to be decided by a fair-minded judgement.
III. — What in respect to their own state is lazvful for those who are
serving in the army, or fitting out ships, at their own expense •
As regards their own state the arrangement with such contributors
will be just, according to the standard of moral justice, if there
shall be equality in the contract, that is, if the expenses and dangers
shall be as great as the chance of booty. For if the expectation of
booty shall be much greater, whatever shall be acquired in excess
ought to be restored to the state. The case is like that of a man
who has bought at a very low price a cast of the net, which is, indeed,
of uncertain value, but is easy to make and warrants the expectation
of a great catch of fish.
IV. — What the rule of Christian love demands of such persons
Even when justice, strictly speaking, is not violated, one may sin
against the duty which consists of loving others, especially the duty
prescribed by the Christian law. A case of this character might arise
if it should be apparent that plundering by such persons would not
be especially harmful to the enemy as a whole, nor to the king, nor
to those who are in fact guilty, but would harm innocent persons,
and in fact to such an extent that it would plunge them into the
greatest misfortunes, into which it would be the negation of mercy
,r# to cast those who are privately indebted to us. Now if to this is
word added the consideration that such plundering will have no notable
no 8# ' eflect in ending the war, or in weakening the public strength of the
versc5- enemy, then gain acquired solely in consequence of the unhappy
Chap. XVIII] On Acts done by Individuals in a Public War 791
condition of the times * ought to be considered unworthy of a just
man, and especially of a Christian.
V. — How a private war may be mingled with a public war
Sometimes it happens that a private war arises in connexion with
a public war ; as, for example, if a person has f allen among enemies
and his life or property is endangered. In such cases the rules should
be observed which we have elsewhere stated in regard to the limit
permissible in self-defence.
Public authority, again, is wont to be joined with private advan-
tage ; a case would be if a person who had suffered a great loss at
the hands of the enemy [566] should obtain the right of collecting
damage from the enemy's property. The right in that case must
be defined in accordance with the principles stated above in regard
to the taking of security.
VI. — Tbe obligation resting upon a person, who has done harm to the
enemy without orders, is set forth with a distinction
But if a soldier or any other person, even in a just war, has burned
houses belonging to the enemy, has devastated fields, and caused
losses of this character without orders, when, furthermore, there was
no necessity or just cause, the theologians rightly hold that he is
bound to make good the losses. I am, however, justified in adding,
what was omitted by them, ' when there was no just cause ' ; for if
there is such a cause he will perhaps be answerable to his own state,
whose laws he has transgressed, but not likewise to the enemy, to
whom he has done no legal wrong.
This is not unlike the reply made by a certain Carthaginian to
the Romans who were demanding the surrender of Hannibal :
I consider that the question at issue is not whether Saguntum was attacked in accord-
ance with a decision of an individual or of the state, but whether it was attacked right-
fully or wrongfully. For the question whether our citizen acted in accordance with
our decision, or his own, is our business, and to us belongs the punishment of a citizen
of ours. The subject of discussion between you and us is merely, whether under our
treaty the attack was permissible.
1 Plutarch accuses Crassus also on this account [Crassus, ii=p. 543 b] : ' Most of this property
he amassed through fire and war, taking advantage of the common misfortunes as his greatest means
of gain.'
II. i [33.
Sylvester,
word
bellum,
pt. 1.
[Livy,
XXI.
xviii. 6.)
CHAPTER XIX
ON GOOD FAITH BETWEEN ENEMIES
xxv
'XIV.
169 ffj.
[iii. 5-1
[=P.
184 c.]
[V. xxii.
63.]
[Declama-
tions,
cclxvii.]
[cccxliii.]
[On
Duties,]
II. xxix
[I. xxix.
140].
Letters, ccv
[clxxxix.
6], To
Boniface.
(V. xxvii.
«0
I. — Good faith is to be kept with enemies of every description
1. We have said that, in respect to character and extent, what
is permissible in war is considered either absolutely or with refer-
ence to a previous promise. The first part of the subject has now
been finished ; there remains the latter part, which concerns the good
faith of enemies with one another.
Silius Italicus, a Roman consul, has well said :
[567] And best is he
In military service, who from first to last
Maintains good faith in wars.1
Xenophon in his oration On Agesilaus says : ' So great and excellent
a thing it is in all men, to be sure, but especially in the case of generals,
to be and to be considered respecters of good faith.'
In his fourth speech On Leuctra Aristides says : ' Those who are
devoted to justice are especially revealed in the maintenance of peace
and other public agreements.' As Cicero, in fact, rightly declared in
his On Ends, there is no one who does not approve and praise the
quality of mind by which not only is no advantage sought but good
faith is kept even to one's disadvantage.
2. Public faith, as Quintilian the father remarks, makes truces
between armed foes and preserves the rights of states that have
surrendered. In another passage the same author says : ' Good
faith is the strongest bond in human affairs ; good faith is held in
sacred esteem between enemies.' Similarly Ambrose also : c There-
fore it is clear that even in war good faith and justice ought to be
preserved.' Again, Augustine 2 declares : ' When faith is pledged,
it must be kept even with an enemy against whom war is being
waged.'
Those who are enemies do not in fact cease to be men. But
all men who have attained to the use of reason are capable of posses-
sing a right which has its origin in a promise. In Livy Camillus
says that he had such an alliance with the Faliscans as nature had
produced.
1 According to Appian, Civil Wars, IV [IV. ix. 68], Archelaus the philosopher said : ' You
have sworn to the treaties and have given the pledge of your right hands, which even enemies hold
inviolate.' Diodorus Siculus, in the Excerpla Peiresciana [p. 342 = XXXII. viij, praises Africanus the
Younger on account of this virtue.
1 He treats extensively of the same subject in Letlers, ccxxv [cxxvi].
792
Chap. XIX]
On Good Faith between Enemies
793
3. From the association of reason and speech arises that bind-
ing force of a promise with which we are dealing. Because we have
previously said that, in the opinion of many, lying to an enemy is
either permissible, or free from wrong, it must not be thought that
this view can be extended with like reason to pledged faith. For
the obligation to speak the truth comes from a cause which was
valid before the war, and may, perhaps, in some degree, be removed
by the war ; but a promise in itself confers a new right.
Aristotle recognized this distinction when, treating of veracity,
he said : ' We are not speaking of the person who is truthful in
agreements and in those matters which have to do with justice and
injustice. For these belong to a different virtue.'
4. Of Philip of Macedon Pausanias says : ' No one would
rightly call him a good general who habitually disregarded oaths,
broke treaties at every opportunity, and dishonoured good faith
more than all other men.' Valerius Maximus has this characteriza-
tion of Hannibal : ' He declared war openly on the Roman people
and Italy, but he waged war more bitterly against good faith herself,
having delight in lies and deception as if in noble virtues. For this
reason it has come to pass that, though otherwise he might have left
the memory of a noble name, it is doubtful whether he ought to be
considered an extraordinarily great or extraordinarily bad man.'
According to Homer the Trojans, troubled in conscience, thus
accuse themselves :
Now breaking sacred pledges
And sworn good faith we fight ; for us a crime is war.
[VIII.
vii. 5.]
[IX. vi.
ext. 2.3
II. — Refutation of the view that faith ought not to be kept zvith pirates
and tyrants
I . Already in our previous discussion we have said that we ought
not to accept the principles laid down by Cicero : ' We should have
no relations with tyrants, but rather the most absolute separation ' ;
again, ' A pirate [568] . is not classed in the number of regular
enemies ; with him there is no bond of good faith, and he does not
respect a common oath.' Seneca, too, said of a tyrant : ' When
the relationship of human rights was broken orT, every bond, that
bound him to me, was severed.'
From such a source arose the error of Michael of Ephesus, who in
his commentary on the Nicomachean Ethics said that the violation of
the wife of a tyrant did not constitute adultery.1 By a like error
[V. x.]
1 Seneca in the Excerpts [Controversies], IV. vii, says : ' Not thinking it adultery to debauch the
wife of a tyrant, as it is not murder to kill a tyrant.' Julius Clarus in the section Homiciiium, no. 56,
believes that adultery could with impunity be committed with a banished woman.
794
On the Law of War and Peace
[Book II
tPlutarch,
Pompey,
xxvii = p.
633]
[III. xix.
t.]
[III. XXV
=p. 322.]
[XXXVI.
i.]
LVI [xUii].
[Above,
III. xix.
2,1.]
[II. xx. 8.]
On Dutus,
III [vi.
32]-
certain teachers of the Jews * have made a similar statement about
foreigners, whose marriages they considered void.
2,. Nevertheless Gnaeus Pompey finished the war with the Pirates
in great part by means of treaties,2 promising to them their lives, and
places in which they might live without plundering. Sometimes also
tyrants have restored liberty after having agreed to immunity. In the
third book of the Civil War Caesar writes that the Roman commanders
made an agreement with the brigands and deserters who were in the
Pyrenees mountains. Who will say that, if an agreement of any sort
had been made, no obligation would have arisen from it ?
Such agreements do not in fact share in that special community
of legal obligations which the law of nations has introduced between
enemies engaged in a formal and complete war. But because their
authors are human beings they have a common share in the law of
nature, as Porphyry has rightly maintained in his work On Abstaining
from Animal Food. From this follows the consequence that the
agreements must be kept. Thus Diodorus relates that Lucullus kept
faith with Apollonius, a leader of runaway slaves, and Dio writes that
Augustus, in order not to violate good faith, paid to the brigand Coro-
cotta, who had delivered himself up, the reward placed on his head.
III. — Answer to the argument drawn from the fact that such persons
deserve punishment, and the proof that this is not taken into account
when they have been treated with
1. But let us see if a more plausible view can be presented
than that expressed by Cicero.
The first consideration is that, as we have elsewhere explained,
if we take into account the law of nature, atrocious criminals, who do
not belong to any state, can be punished by any person whatsoever.
But those who can be punished with the loss of life can also be deprived
of their property and rights, as the same Cicero rightly said : ' It is
not contrary to nature to despoil, if you can, the person whom it is
lawful to kill.' Among the rights of such a person is the right arising
from a promise. This right, therefore, can also be taken from him
as a penalty.
I answer that the reasoning would hold good if one had not
treated with the person in question as a malefactor ; but if at any
time we have treated with such a person as such 3 we ought to consider
1 Rabbi Levi Ben Gerson and Rabbi Salomon, On Levilicus, xx. 10.
* So there was disapproval of the faithlessness of Didius towards the Celtiberians, who lived by
plunder [Appian, Spanish Wars, xvi. 100].
• Terence, Adelphi [II. i. 34 f.], says :
I own I am a pander, a common bane of youths,
A perjured wretch, a pest ; yet you I have not wronged.
On this subject refer to the author, who has written on the terms of peace between the princes and
order» of the [Holy Roman] Empire.
Chap.XlX] On Good Faith between Enemies 795
that we have been treating in regard to the remission of the punish-
ment belonging to his condition. The fact is, as we have said else-
where, that that explanation must always be assumed which pre-
vents an act from becoming without effect.
2. According to Livy, Nabis made an apt reply when Quintius
Flamini[n]us reproached him with being a tyrant : ' As regards this
title, I can reply that, whatever I am, I am the same that I was
when you yourself, Titus Quintius, made the alliance with me.'
Later he says : ' I had already done these deeds, whatever they are,
when you made the alliance with me.' He adds : ' If I had changed
in anything, then I ought to offer an explanation of my lack of con-
sistency ; but since you are changing, you ought to off er an explana-
tion of your inconstancy.'
In an address of Pericles to his fellow-citizens, according to
Thucydides, there is a passage of similar purport : ' We shall permit
the allied states to be free, if they were so at the time when the
treaty was made.'
IV. — The fact that a promise has been extorted through fear presents no
obstacle, if the fear zvas notfelt as a personal fear by him who made
the promise
Next, the objection, which I mentioned elsewhere, may be
brought forward, that the person who has caused a promise to be made
through fear is bound to free the promisor, for the reason that he
has caused the loss unjustly; that is, by means of an action opposed
to the nature both of human liberty and of an act which ought to
be free.
Though we admit that this is sometimes the case, yet it does
not cover all promises made to brigands. For in order that the
person, to whom a promise has been made, should be bound to free
[569] the promisor, it is necessary that he himself should have
caused the promise by an unjust fear. If therefore any one has pro-
mised a ransom in order to release a friend from captivity, he will
be bound to pay ; for the fear did not affect the person who came
of his own free will to make the agreement.
V. — Or, if an oath has been given, the fact that a promise has been
extorted through fear presents no obstacle, although in the case of
a brigand such an oath is violated with impunity so far as men are
concerned
There is the further consideration that a person who has made
a promise under the compulsion of an unjust fear can be obligated
796 On the Law of War and Peace [Booklll
if the sanction of an oath has been added. For, as we have said else-
where, a man is thereby bound not only to man but also to God,
and in relation to Him fear makes no exception. Nevertheless it is
true that the heir of the promisor is not held by such a bond alone,
because, according to the primitive law of ownership, those things
which belong to the commercial relations of life pass to the heir,
but these do not include a right sought from God, as such.
iii. iv. 10 This, again, must be repeated from an earlier statement, that if
Sl an.y one violates a sworn or unsworn pledge given to a brigand he
will not on that account be liable to punishment among other nations.
For because of the hatred of brigands the nations have decided to
overlook illegal acts committed against them.
VI. — The same rules are applicable in relation to rebellious subjects
What shall we say regarding wars of subjects against their kings
and other sovereign authorities?
That subjects do not have the right to employ force, even though
1. iv. they have a cause which in itself is not unjust, we have shown else-
where. Sometimes even the injustice of their cause, or the baseness
of their resistance, may be so great that they may be punished severely.
. ertheless, if they have been treated with as one would treat
deserters or rebels, punishment cannot be inflicted contrary to a
promise, as we have just stated.
In their scrupulousness the ancients held that faith must be
kept even with slaves ; in fact it was believed that the Lacedae-
Aeiian, monians had drawn down upon themselves divine anger because
H^t^y] they had killed the Taenarians, their slaves, contrary to agreement.
vi. vii Also Diodorus Siculus notes that the faith pledged to slaves at the
[lxxxix]. shrine of the Palici had never been violated by any master. More-
over it will be possible to nullify here also the exception allowed in
case a promise was made by reason of fear, if the promise has been
confirmed by an oath ; so the plebeian tribune, Marcus Pomponius,1
kept the promise which had been made to Lucius Manlius under the
influence of fear, because he was bound by an oath.
VII. — The special difficulty presented by promises made to subjects under
the right of eminent domain
At this point, in addition to the difficulties previously met with,
a special difnculty is presented by the right of passing laws and the
right of eminent domain over the property of subjects; this right
1 ' The tribune took the oath and did not practise deception, but gave to the assembly this reason
for dropping the accusation [action]. No one else has been permitted to restrain a tribune with
impunity ' ; beneca, On Bcncfits, III. xxxvii.
Chap. XIX] On Good Faith between Enemies 797
belongs to the state, and is exercised in its name by the one who
holds supreme authority. If in fact this right covers all the posses-
sions of subjects, why does it not cover also the right arising from
a promise in war ? If this be conceded, it appears that all such
agreements will be void, and therefore there will be no hope of ending
a war excepting through victory.
But, on the contrary, we must note that recourse is had to the
right of eminent domain, not indiscriminately, but only in so far as
this is to the common advantage in a civil government, which, even
when regal, is not despotic. But in most cases it is to the common
advantage that such agreements be kept ; and what we have said
elsewhere about the preservation of the existing government applies
here also. An additional point is that, when circumstances demand
the enforcement of this right, compensation ought to be given, as
will be explained later.
VIII. — It is shown also that such promises may be conjirmed by an oath
of the state
1. Moreover treaties may be sanctioned by an oath taken not
only by a king or a senate, but also by the state itself. Thus Lycurgus [Piutarch,
made the Lacedaemonians take oath to his laws, and Solon the ^f*^'
7 . xxix=p.
Athenians ; and in order that the oath might not become invalid on 57 e;
account of the change of persons it was repeated annually. xxv=p
If such repetition is in fact kept up, there will be no necessity 92 b.]
of withdrawal from the promise, even for the sake of the public
advantage ; for not only may a s.tate yield its own right, but [570]
words can be made so clear as to admit of no exception. Valerius v#iii
Maximus thus addresses Athens : * Read the law which holds you [<*t. 3].
bound by oath.' This kind of laws, by which the Roman people
was itself in conscience bound, as Cicero explains in the speech
For Balbus, the Romans called ' sacred '.1 [xv. 35.]
2. A rather obscure discussion bearing upon this subject is
found in the third book of Livy, where he says that in the opinion [iil iv.
of many interpreters of the law the tribunes were inviolable, but not
likewise the ediles, judges, and decemvirs; yet, if harm should be
done to any of the latter, an unlawful act was committed. The
reason for the distinction is that the ediles and the others were
protected by the law alone ; moreover, what the people had voted
last prevailed, and so long as the effect of the law lasted no one could
lawfully act in opposition to it. The tribunes, on the contrary,
were protected by a public religious obligation of the Roman people ;
for an oath had been taken which could not be annulled by those
1 See Manutius, De Legibus,
6-7.]
798
On the Law of War and Peace
[Book III
[VI.
lxxxix. 2.]
Livv,
XXXIX
[xxiii. 6].
who had sworn it, without violating religious scruple. Dionysius of
Halicarnassus says : ' Brutus summoned an assembly and advised the
citizens to make this magistracy inviolable, not only by law but also
by an oath, and all so voted.' That is the reason why the law is
caHed sacred.
In consequence good men disapproved of the act of Tiberius
Gracchus x when he removed Octavius from the tribuneship, though
he declared that the tribunician power received its inviolability from
the people and not against the people. Therefore, as I have said,
both a state and a king can be bound by an oath, even in the case
of subjects.
IX. — Or, promises are binding if a third person, to whom the promise
is made, enters into the case
But also a promise will be made with binding force to a third
person, who has not inspired fear. We shall not investigate how or
to what extent he may be interested in the promise ; these are subtle
distinctions belonging to the Roman law. By nature, in fact, it is
important for all men to have regard for other men. Thus we read
that by the peace made with the Romans Philip was deprived of
the right of visiting cruelty upon those Macedonians who had revolted
from him in war.2
I. iii.
17 fi.
X. — How the political character of a state may be changed
Further, we have shown elsewhere that states of mixed character
sometimes exist ; and just as by agreement states may pass from one
pure form into another, so they may pass also into a mixed form.
Similarly those who had been subjects may begin to hold sovereign
power, or at any rate some part of it, together with the free right to
defend that part by force.
XI. — Fear does notjustify an exception in respect to a war that isformal
according to the law of nations
I . A f ormal war, that is a war publicly declared on both sides,
has not only other characteristics in respect to legal right but also this
characteristic in particular, that all promises made in the course of the
war, or for the purpose of terminating it, are valid to the extent that
they cannot be made void by reason of a fear unjustly inspired, except
with the consent of the party to whom the promise has been made.
For just as many other things, though they may not be devoid of
1 See Plutarch, in his life [Tibcrius Gracchus, xv-xvi=
• Thcre is a similar example in Paruta, Book VI.
p. 831 d], for this story in full.
Chap. XIX]
On Good Faith between Enemies
799
fault in some degree, are considered lawful according to the law of
nations, so also the fear which in such a war x is inspired on both
sides.
Unless this rule had been adopted, no limit nor termination could
have been fixed for such wars, which are extremely frequent. Yet
it is to the interest of mankind that such bounds be set. This may
be understood to be that law of war which Cicero says must be
observed with an enemy. Elsewhere Cicero declared that an enemy
retains rights in war, obviously referring not only to rights arising
from the law of nature, but also to certain rights which have arisen
from the general consent of nations.
2. From this nevertheless it does not follow that the party
who has extorted some such promise by an unlawful war can retain
what he has received without violating the honour and duty of
a good man, or even can compel the other to hold to the agreement,
whether sworn to or not. For essentially and in its [571] nature
the transaction remains unjust. This essential injustice of the action
cannot be removed except through a new and absolutely free consent.
On Duiies,
III [xxix.
107].
Against
Verres, IV
[lv. 122].
XII. — What is to be understood regarding such a fear as the law of
nations recognizes
But my statement that the fear inspired by a formally declared
war is considered lawful ought to be understood of such a fear as is
not disapproved by the law of nations.2 For if anything has been
extorted by the fear of rape, or by terrorizing of any other sort which
involves violation of pledged faith, it will be nearer the truth to say
that the case has been brought within the scope of the law of nature ;
the force of the law of nations does not extend to such a fear.
XIII. — Faith must be kept even with the faithless
1. I have previously said, in the general treatment of promises,
that faith must be kept even with the faithless. Ambrose, too, holds
the same opinion ; he thinks that beyond question the maintenance
of good faith should be extended even to treacherous enemies, such
as the Carthaginians, with whom the Romans kept faith inviolably.
On this point Valerius Maximus remarks : ' The Senate did not
take into consideration those to whom the obligation was being dis-
charged.' Sallust, again, says : ' In all the Punic wars, although
the Carthaginians both in time of peace and in periods of truce had
II. xiii. 16.
[On
Duties,
I. xxix.]
VI. vi [3].
[Catiline,
li. 6.]
1 See the writer as referred to above, on the treaty of peace.
2 So a promise extorted from a captured ambassador is of no value to the one extorting it ; Mariana,
XXX [XXX. xii and xix].
1569.27 3 H
8oo
On the Law of War and Peace
[Book III
[Spanish
Wars.
x. 6o.l
VIII. ii
[VIII.1.2;.
Cicero,
Onthe
Oration, I
[On the
Orator, I.
and
Brutus
[xx. 80].
[Livy, I.
xxii. 7.]
Digest,
XVII.
ii.14.
committed many atrocious wrongs, the Romans themselves never
took advantage of an opportunity to do such deeds.'
2. Of the treaty-breaking Lusitanians, whom Sergius Galba
had deceived by a new treaty and then slaughtered, Appian says :
1 In avenging perfidy with perfidy he imitated the barbarians in
a manner inconsistent with the dignity of Rome.' On this charge
the same Galba was afterward accused by the plebeian tribune Libo.
In giving an account of the matter, Valerius Maximus says : ' Pity
and not justice ruled l that trial, since the acquittal, which could not
have been granted to innocence, was given out of regard for his
children.' Cato had written in the Origins that Galba ' would have
been punished if he had not made use of his children and his tears \
XIV. — Faith does not have to he kept if the condition changes ; and this
takes place ij the other does not keep his part of the agreement
At the same time the fact should be recognized that in two ways
one may be free from breach of faith and yet not do what was pro-
mised — if the condition ceases, and if compensation is given. The
cessation of the condition does not in reality free the promisor, but
the result shows that there is no obligation, since this was entered
into only under the condition.
To this principle we must refer the case which arises if the other
party has not fulfilled what he on his part was bound to carry out.
For the individual items of one and the same agreement seem to be
related in respect to the two sides after the manner of a condition,
as if it had been stated in this way : I will do thus and so if the other
does what he has promised. Thus Tullus, replying to the Albans,
* calls the gods to witness, which of the two peoples first rejected and
dismissed the envoys demanding restitution, in order that they may
visit on that people all the losses of the war '. Ulpian says : ' He
will not be liable as a partner who has renounced a partnership for
the reason that a certain condition, on which the partnership was
formed, is not complied with in relation to him.' For this reason,
whenever the intent is different, it is usually expressly stated that
if anything is done contrary to this or that provision the others
nevertheless will remain valid.
.
XV. — Faith does not have to be kept in case a just compensation is
tendered in return
The origin of compensation I indicated elsewhere,2 when I said
that if anything is ours or is due to us, and we cannot otherwise obtain
1 7Vxx7 (covered) is a typographical error for rexit (ruled).
1 II. vii. 2. Tertullian, Scorpiace [vi], says : ' No one should object to compensation, in which
regard i% had alike for favour and for injury.'
Chap.XlX] On Good Faith between Enemies 801
it from him who has it or owes it to us, we can accept an equivalent
amount in something else. From this it follows the more clearlv
that we may keep what is in our possession, whether it be corporeal
or incorporeal. Therefore what we have promised will not have to
be fulfilled if the value involved is no greater than that of our pro-
pertv which is wrongfully in the possession of the other.
In the sixth book On Benejits Seneca says : *
So a creditor often loses his suit to his debtor when on another account he has taken
more than he tries to secure from the debt. For the judge sits between the creditor and
the debtor to say, * You have loaned him money ; what then ? . . . You have possession
of a field which [572] you did not buy ; after an adjustment of values, you, who
came as a creditor, depart as a debtor.'
XVI. — Faith does not have to be kept in case a just compensation is
tendered in return^ even if this is on another contract
The same principle will hold if the party with whom I have
dealings owes as much or more under another agreement, and I am
not able otherwise to secure what is due to me. In the law courts,
as the same Seneca says,2 different actions are separated, and the
causes of action are not mixed. But, as noted in the same passage,
those cases are guarded by definite statutes which it is necessary to
observe : a law must not be mixed with a law ; we must go whither
we are led. The law of nations does not recognize those distinctions ;
in the cases which fall within its scope there is no other hope of
acquiring one's right.
XVII. — Faith does not have to be kept in case damage has been done
The same principle will have to be applied if the party who
insists on the fulfilment of a promise has not carried out his part of
the agreement, but has inflicted damage. In the passage just cited
Seneca says : 3 ' A landowner who has trampled down the crop or
cut down the trees of his tenant has no legal right over the tenant,
even though the lease is uncancelled, not because he has received
what had been agreed upon, but because he himself was the cause
of his not receiving it.' Presently Seneca adds other examples :
' You have driven away his cattle and killed his slave.' And again : 4
* It is permissible for me to compare how much each one has assisted
me, how much he has injured me, and then to declare whether he
is more indebted to me or I to him.'
1 Seneca, On Benefits, VI. iv. 4. 2 Ibid., vi, vii [v. 6, 7]. 3 Ibid., iv. * Ibi '.., vi.
3H2
802 On the Law of War and Peace [Booklll
XVIII. — Furthermore, faith does not have to be kept when something is
due as a penalty
Finally, what is due as a penalty can be taken in lieu of what
has been promised. This is explained at length in the passage already
[On Bem- quoted : ' On the one hand favour is due for a benefit, on the other
lgeance for an injury. Gratitude is not due to him from me, nor
punishment to me from him ; the indebtedness on both sides is
cancelled.' Presently Seneca adds : * ' After a comparison has been
made between the favours and the injuries, I shall see whether any-
thing more is due to me.'
XIX. — How these principles become applicable in war
i. Just as in case an agreement has been made between con-
testing parties, while the suit is in progress, neither the action which
gave rise to the suit, nor the losses and damages of the suit, can be
used as an ofTset for what was promised, so, while a war lasts, com-
pensation cannot be given for what originally caused the war, nor
for what is customarily arranged in accordance with the laws of war
among nations. For the nature of the business, that it be not void
of effect, shows that the agreement was made without consideration
of the controversies which led to the war. Otherwise, in fact, there
would be no agreement which could not be lightly set aside.
To this conclusion I may not inaptly apply the observation of
the same Seneca,2 whom I have several times quoted : ' Our ancestors
accepted no excuse, in order that men might know that good faith
must by all means be preserved. It was in fact better that even
a just excuse from a few should not be accepted, than that any sort
of an excuse should be tried by all.'
2. What, then, can be used as an oflset to that which was
promised ? Undoubtedly whatever the other party owes, even under
the terms of another agreement entered into during the war ; or,
it may be reckoned as an offset if he has caused damage during a truce,
or has failed to respect the inviolability of ambassadors, or has done
anything else which the law of nations condemns between enemies.
3. Nevertheless the observation should be made that the
adjustment is arranged between the same parties, and in such a way
that the right of a third party is not infringed ; yet so that the goods
"]. of subjects, as we have said elsewhere, are held by the law of nations
to be liable for the debt which the state owes.
4. We add this also, that it is characteristic of a noble mind
to abide by treaties even after an injury has been sufTered. For this
1 Ibid., vL ■ Jbid., VII. xv [VII. xvi. 2].
Chap. XIX] On Good Faith between Enemies 803
reason the wise Hindu Iarchas praised the king who, although Phiio-
wronged by an allied neighbour, ' did not withdraw from his sworn f^vT'
pledge, saying that he had sworn in so holy a manner that he would [Lifeof
not harm the other even after suffering wrong'. tmmof
5. Almost all the questions which are wont to arise concerning Tyana,
the faith accorded to an enemy can be settled if we follow the rules IIL xxL
already laid down in our discussion not only of the force of promises 11. xi ff.
of all kinds, or of a special oath, or of a treaty and sponsions, but also
of the rights and obligations of kings, and the interpretation of
ambiguous statements. Nevertheless, in order that the application
of the foregoing principles may be more plain, and that our dis-
cussion may be extended to cover whatever else is in dispute, [573]
I shall not hesitate to touch on the special questions which are more
common and which more generally demand attention.
[574] CHAPTER XX
OX THE GOOD FAITH OF STATES, BY WHICH WAR IS ENDED ; ALSO
ON THE WORKING OF PEACE TREATIES, ON DECISION BY
LOT, ON COMBAT BY AGREEMENT ; ON ARBITRATION,
SURRENDER, HOSTAGES, AND PLEDGES
I. — Division of good faith between enemies, according to the order of
what follows
[575] Understandings between enemies rest upon a promise
expressed or implied.
An express promise is either public or private. If public it is
imputed either to the supreme authority or to subordinate powers.
That which is imputed to the supreme authority either puts an end
to war or maintains its force while the war lasts.
Among the factors which terminate a war some are looked
upon as principal, others as accessory. Those are principal which
themselves end the war by their own action, as treaties, or by the
consent to refer to something else, such as the drawing of lots, the
issue of combat, or the decision of an arbitrator. Of the last three
the first rests on pure chance, while the other two combine chance
with strength of mind or body, or with capacity of judgement.
II. — In a monarchy the right to make peace belongs to the king
s<* n. Those who have the right of initiative in conducting a war have
the right to enter into treaties for the purpose of ending it. Each,
in fact, is the manager of his own affairs. From this it follows that
in a war which is public on both sides the right to end it belongs
to those who have the right to exercise supreme power. In a true
monarchy, therefore, this will belong to the king,1 provided also the
king has unrestricted power.
III. — What if the king is an infant, insane, a captive, or in exile ?
1 . A king who is of such an age that he does not possess maturity
of judgement (in some kingdoms such an age is defined by law, else-
where it will have to be determined by a more probable estimate)
or a feeble-minded king cannot make peace.
The same principle will apply to a king in captivity,2 provided
he possesses a kingly authority which had its origin in the consent
' mana, XXI. i.
■ See Guicciardini, Books XVI and XVIII ; more than a single reference.
804
xv. 3
Seel.
Chap. XX]
On Good Faith in Ending War
805
of the people. It is, in fact, not credible that sovereignty was con-
ferred by a people on such terms that it could be exercised by one
who is not free. Therefore in this case also not the undivided sove-
reignty indeed,1 but the exercise, and, as it were, the guardianship
of it, will belong to the people, or to the one to whom the people
has entrusted it.
2. Nevertheless, if a king even in captivity has pledged anything
of his own private possessions, the pledge will be valid, in accordance
with the principle set forth in what we shall state concerning private
agreements.
But if a king shall be in exile,2 will he be able to make peace ?
Surely so, if it be established that he is not living under constraint ;
otherwise his condition will differ too little from that of a captive,
for there are captives also who are loosely guarded. Regulus refused
to give his opinion in the senate, saying that he was not a senator
so long as he was bound by an oath to the enemy.
IV. — In an aristocracy or a democracy the right of making peace belongs
to the majority
In accordance with what we have said elsewhere, in aristocratic
or democratic governments the right of making treaties will belong
to the majority ; in the former case, the majority of the public
council, in the latter, the majority of the citizens who according to
custom have the right to vote.
Accordingly, treaties so made will be binding even on those who
have voted against them. Livy says : ' When a treaty has once been
voted it will have to be defended as a good and advantageous treaty
by all, even by those who were previously opposed to it.' Dionysius
of Halicarnassus states the case thus : ' What the majority has voted
must be obeyed.' Appian says : ' All, without admitting any excuse,
are bound to obey the decree.' Says Pliny : ' All had to observe
what the majority had approved.' Peace, moreover, is of advantage
also to those whom it obligates, if they so wish.
V. — Now the sovereignty, or a part of the sovereignty, or the property
of the realm may be validly alienated for the sake of peace
1. Let us now see what the things are which may be made
subject of a treaty.
1 Arumaeus in his Discourses on ihe Golden Bull says : ' Rudolph of the Palatinate had fled to
England in fear, and Henry of Mayence had been expelled by force from Treves ; yet they did not
lose their votes as Electors/
2 Lucan says [V. 28 f.] :
And while Camillus dwelt in Veii's walls,
There too was Rome.
See Chassanaeus in the Catalogus Gloria Mundi, pt. V, consid. 89 [49].
Cicero,
On Duties,
II [III.
xxvii.ioo].
II. v. 17.
XXXII
[xx. 6].
XI [Ivi].
VI [Poly-
bius, V.
xlix. 7].
Letters,
VI.xiii[4].
Vazquez,
Cont. III.,
I. iv, cites
many,
and v.
See above,
II. vi. 3 ff.
8a6 On the Law of War and Peace [Booklll
Kings, such as the majority now are, are not able to alienate by
treaty either the whole sovereignty or a part of it, since they hold
their royal authority not as a patrimony, but as if in usufruct. [576]
Even before they receive the kingship, while the people are still
superior to them, such acts can be rendered entirely void for the
future by a public statute, so that they cannot give rise to any obliga-
tion in the king's interest. And it is to be believed that the people
have so willed ; for otherwise, if the act were binding on the con-
tracting party to his interest, the goods of subjects might be taken
for the king's debts, and it would follow that the provision against
the alienation of the sovereignty would be in vain.
2. In order, therefore, that the undivided sovereignty may be
transferred in a valid manner, the consent of the whole people is
necessary. This may be effected by the representatives of the parts
which are called the estates.
In order to validly alienate any part of the sovereignty there is
need of a twofold consent, that of the whole body, and in particular
the consent of that part of which the sovereignty is at stake, since
without its consent it cannot be separated from the body to which
it has belonged. Yet in case of extreme and in other respects un-
avoidable necessity the part itself will probably transf er the sovereignty
o.ver itself in a valid manner without the consent of the whole people,
because it is to be believed that that power was reserved when the
body politic was formed.
3. In patrimonial kingdoms, however, there is nothing to
prevent a king from alienating his crown. Yet it may happen that
such a king would not be able to alienate a part of the sovereignty,
if indeed he has received the kingdom as his property on the con-
dition of not dividing it. But the property described as royal may be
included in the patrimony of the king in two ways, either separately,
or indivisibly united with the kingdom itself. If included in the
latter way, it may be transferred, but only with the transfer of the
crown itself ; if separately, it may be transferred separately.
n. xiii 4. But kings who do not hold their kingship in patrimony seem
[ii. vi. i3i. hai-dly t0 nave Deen granted the right of alienating the property
of the realm, unless this right plainly appears as arising from some
early law, or has never been considered contrary to custom.
VI. — How far the people, or his successors, are bound by a peace made
by a king
11. xiv. We have elsewhere stated how far the people, and at the same
V4zque*, time also the successors of the king, are bound by his promise, to
afoprn^n-
wit : so far as the power of creating binding obligations was included
L*vTno. 9. m his sovereignty. This ought neither to be given unlimited range,
Chap. XX]
On Good Faith in Ending War
807
nor to be confined within too narrow limits,1 but ought to be so
understood that what is based on good reason may be accepted as
valid.
The case will plainly be different if a king is at the same time the
absolute master of his subjects, and has received a sovereignty akin
to that of a household rather than to that of a state. Such are kings
who have reduced to slavery people conquered in war ; or a king
who does not indeed have ownership of persons but of their pro-
perty, as Pharaoh in the land of Egypt, in consequence of purchase ;
and others, who have taken strangers into their private possession.
For here the right added to the royal power establishes the validity
of that which could not be maintained as valid by the right of the
king alone.
VII. — In arranging peace the property of subjects can be given up for
the sake of the public advantage, but with the obligation of making
good the loss
1 . This question also is f requently discussed : in the eff ort to
secure peace, what conclusion regarding the property of subjects
may be adopted by kings who have no other right over the property
of their subjects 2 than that inhering in the royal power ?
I have said elsewhere that the property of subjects belongs to
the state under the right of eminent domain ; in consequence the
state, or he who represents the state, can use the property of sub-
jects, and even destroy it or alienate it, not only in case of direct
need, which grants even to private citizens a measure of right over
others' property, but also for the sake of the public advantage ; and
to the public advantage those very persons who formed the body politic
should be considered as desiring that private advantage should yield.
2. But, we must add, when this happens, the state is bound
to make good at public expense the damage to those who lose their
property ; and to this public levy the person himself who suffered
the loss will contribute, if there is need.
The state, furthermore, will not be relieved of this burden if
perchance it is not equal to the payment at the time ; but whenever
the means shall be at hand the obligation will reassert itself as if
merely held in suspense.
[577] VIII. — What in regard to property already lost in war ?
I do not admit without modification the statement of Fernando
Vazquez, that the state ought not to take upon itself the loss already
1 See Reinkingk, Book I, class 111, chap. v, no. 30 [I. v. iii. 19]. See also above, II. xiv. 7 and 12.
2 Gail, II, obs. 57.
Above,
III. viii. 2.
Vazquez,
I. v [15].
Romanus,
Consilia,
310.
Sylvester,
word
bellum,
1. 43-
Cont. IIL,
III. iii.
end
[I. iv. end] .
XVII. li
52- §4
808 On the Law of War and Peace [Booklll
caused by a war, for the reason that the law of war permits such
damages. For that law of war has reference to other peoples, as
111. vi. I have explained elsewhere, and in part applies to the relationships
of enemies but not to those of citizens with one another. Since
citizens of a state are associates, it is right that they should share
the common losses which are suffered by reason of their association.
Digest, Obviously, also, the municipal law may expressly provide that there
shall be no right of action against the state for property lost in war,
to the end that each individual shall defend his property with greater
energy.
IX. — No distinction is here made between property acquired under the
law of nations and under the municipal law
Some make a broad distinction between property which belongs
to citizens by the law of nations and that which belongs to the same
persons by municipal law ; in consequence they grant to the king
a more unrestricted right over property owned under the law of
nations, even to the extent of taking it away without cause and
without compensation, while they admit no such right in the case
of property held by the law of nature.
This distinction is wholly erroneous, for ownership, no matter
from what cause it has arisen, always has effects originating in the law
of nature ; consequently it cannot be taken away except as the result
of causes which are inherent in ownership by its very nature, or
arise from an act of the owner.
X. — From the point of view of foreigners puhlic advantage is presumed
Now this doctrine, that the property of individuals should not
be given up except for the public advantage, has reference to the
king and his subjects, just as the other doctrine regarding com-
pensation for loss has reference to the state and individuals. The
act of the king is in fact sufficient for foreigners, who make agree-
ments with him, not only by reason of the presumption established
by the dignity of his person, but also in accordance with the law of
111 lj nations, which permits the property of subjects to be made liable by
the act of the king.
XI. — General rule for the interpretation of peace covenants
1. In the interpretation of peace covenants the observation
11 xv 12 should be made that, as we have previously stated, the more favour-
able a condition is, the more broadly it is to be construed, while the
Chap. XX]
On Good Faith in Ending War
809
further a condition is removed from a favourable point of view the
more narrow is the construction to be placed upon it.
If we have in view the law of nature, the most favourable con-
dition seems to rest on this principle, that each shall obtain what
belongs to him, which the Greeks have expressed bv eKaorrov €^.iv
tol iavrov ; hence the interpretation of ambiguous clauses ought to be
directed to the end that the party who had a just cause of war should
obtain that for which he took up arms, and should likewise recover
for damages and costs, but that he should not also recover anything
by way of penalty, for that would arouse more hatred.
2. Since, however, it is not customary for the parties to arrive
at peace by a confession of wrong, in treaties that interpretation
should be assumed which puts the parties as far as possible on an
equality with regard to the justice of the war.
This is usually accomplished in one of two ways ; either the
possession of property, which has been disturbed by war, is adjusted
in accordance with the former right of ownership x [status quo ante
bellum\ the expression used in the speech of Menippus where he
discusses the difrerent kinds of treaties ; or, things remain as they
are [uti possidetis\ and this the Greeks call ' holding what they
have '.
Livv,
XXXIV
[lvii. 8].
XII. — In doubtful cases it is believed that the understanding is that
things remain as they are ; how this ought to be interpreted
1. Of the two ways mentioned, in case of doubt the presump-
tion is in favour of the second, because it is easier and does not intro-
duce a change. Hence the rule laid down by Tryphoninus, that in
peace the right of postliminy applies only to those captives who have
been expressly mentioned in the treaty, as we have stated above,
where it was shown by sound arguments that Faber's emendation of
the text was correct. So also deserters will not be surrendered unless
that is in the agreement. For we receive deserters by the law of
war ; 2 that is, according to the law of war we are allowed to admit
and enrol on our side the one who changes allegiance. Under such
an agreement the other things remain in the hands of the possessor.
2. In such cases, however, the word possession is understood
not according to municipal law but according to the law of nature.
For in wars the fact of possession suffices, and nothing else is con-
sidered. Moreover we have said that lands are so held if they have
been enclosed by fortifications ; for temporary possession, as in the
1 See Paruta, Book V.
2 See above, III. i. 22, In peace this agreement is generally made, that deserters shali not be
received ; see the peace of Justinian with Chosroes in Menander Protector [frag. n, p. 10, edit. Dindorf],
Digest,
XLIX.
xv. 12.
Above,
III. ix [4].
Dig. XLI.
i. 51.
Above,
III. vi. 4.
Decio,
Consilia,
III. lxxiv.
8io
On the Law of War and Peace
[Book III
[Ontht
Croxtm,
xviii.26 =
P 234]
Above,
III. vii.4.
XXXIII
[xiii. 12].
case of a stationary camp, is here not to be taken into account. [578]
In his speech for Ctesiphon Demosthenes says that Philip hastened
to seize what places he could, knowing that, as matters stood, after
the conclusion of peace he would retain what he held.
Incorporeal possessions are not retained except through the things
to which they belong, as the servitudes of lands, or through the
persons who possess them, provided that the rights do not run with
land which formerly belonged to the enemy.
XIII. — What if an agreement has heen made, that all things are to be
restored to the condition in which they were hefore the war ?
In the first kind of agreement, in which possession disturbed
by the war is restored, we must note that the last possession,
which existed before the war, is meant ; nevertheless with the under-
standing that private persons who have been dispossessed may
institute legal proceedings either by possessory action or by a claim
for damages.
XIV. — In such cases those who previously were free and of their own
accord became subject to another are not restored
But if any free people has of its own will yielded to one of the
belligerents, restitution will not be applicable to it ; for restitution
applies only to those things which are accomplished by force, or fear,
or in other ways through deceit permissible only against an enemy.
So when peace was made among the Greeks the Thebans retained
Plataea,1 saying ' that they held that place not by force, nor by
betrayal, but by the free choice of those to whom it belonged .
With equal right Nisaea remained in the possession of the Athenians.
Titus Quinctius made use of the same distinction in relation to the
Aetolians, saying ' That is the rule for captured cities ; of their own
accord the cities of Thessaly came under our sway '.
XV. — In case of doubt damages caused by war are considered as remitted
If no other agreement has been made, in every peace it ought
to be considered settled that there shall be no liability on account
of the damages which have been caused by the war. This is to be
understood also as to damages sufTered by private persons ; for such
damages also are the result of war. In case of doubt it is presumed
that the belligerents intended to make such an agreement that
neither would be condemned as guilty of injustice.
Thut
1 This passage is from Thucydides, V [V. xvii] ; a similar one had preceded in III [III. liil :
W Plataea ought not to be given back, since the men of that city had yielded of their own accord.'
Chap. XX]
On Good Faith in Ending War
811
XVI. — The principle stated does not apply to ivhat was ozved to individuals
before the zvar
Nevertheless we ought not to consider that debts, which were
owed to individuals at the outbreak of war, have been cancelled.
For cancellations of debts are not obtained by the law of war, but
their collection has only been hindered by the war. When, therefore,
the hindrance has been removed, they retain their full force. Although
we should consider that no one ought easily to be deprived of the
rights which he possessed before the war (for, as Cicero rightly says,
commonwealths and states were established especially on this account,
that individuals might be secure in holding what belonged to them),
yet this must be understood in the case of those rights which arise
from the inequality of things.
XVII. — In case of doubt also punishments, which were publicly due
before the war, are considered as remitted
The same principle does not apply to the right to inflict punish-
ment.1 For this right, in so far as it concerns kings or peoples, ought
to be considered as held in abeyance, from fear that the peace will
not be a perfect peace if it leaves the old causes for war.
Wherefore acts not known will also here be included under the
general terms, as the case of the Roman traders who, as Appian
relates, were drowned by the Carthaginians without the knowledge
of the Romans. Dionysius of Halicarnassus declares that the best
reconciliations are those which do away with the anger and the
remembrance of the injuries. In his Plataic Oration Isocrates says :
' In peace it is not fitting to follow up former wrongs.'
XVIII. — What of the right of private persons to infiict punishments ?
As to the right of private persons to inflict punishment, the
reason is not so strong for thinking that it should be heldin abeyance,
because it can be enforced through the courts without war. Never-
theless, since this right is not so clearly ours as that which arises
from inequality, and punishments always cause hatred, a slight
extension of the scope of the words will suffice to suggest that this
right also may be understood to have been given up.
XIX.— A right, which was publicly alleged before the war, but was in
dispute, is easily understood to be in abeyance
What I have said, that a right which existed before the war
ought not easily to be considered annulled, should be firmly main-
Decio,
Cons., lxi.
On Duties,
II [xxi.
73]-
[Punic
Wars, i. 5.]
[III. viii.
4-]
[xiv = p.
299 B.]
Gail, De Arrestis, chap. xiv, no. 7.
812 On the Law of War and Peace [Booklll
tained with respect to the rights of individuals ; [579] but as to
rights of kings and peoples it is easier to understand that some con-
donation has occurred, if only statements, or not improbable in-
ferences, are in evidence. This is above all the case if the right in
question was not ciear, but had been in dispute. It is, in fact, the
part of kindness to believe that the right was suflered to fall into
abeyance in order that the seeds of war might be eradicated.
iii [ix. 3]. The same Dionysius of Halicarnassus, whom I quoted above,
says : ' We ought not so much to consider the renewing of our friend-
ship for the present, as to take care that we may not be involved in
war a second time ; for we have come together for the purpose not
of putting off the evils but of putting an end to them.' The latter
[xxv=p. part of this statement was taken almost word for word from the
164 c.] oration of Isocrates On Peace.
XX. — Tbings captured after the making of peace must be restored
It is well established that things which have been captured
after the conclusion of a treaty of peace must be restored. The right
of war had, in fact, already expired.
XXI. — Some rules bearing upon the agreement to restore things captured
in war
Aidati, In treaties which deal with the restitution of things captured in
v"x^5a' war> nrst> those provisions which apply equally to both sides ought
to be interpreted more broadly than those which are one-sided.
Again, the provisions that are concerned with persons are construed
more favourably than those that treat of things. Among provisions
treating of things those that deal with land are construed more
favourably than those dealing with movables, and those dealing with
public property more favourably than those that treat of private
property. Also among provisions treating of private possessions those
which order the return of things possessed under a saleable title allow
cicero, greater latitude than those possessed under a burdensome title, as
n*[xxiir5' property held under bills of sale or as dowry.
•1].
XXII. — Regarding income
A person to whom a grant of property is made on the conclusion
of a peace is entitled to receive the income of it also from the time
Appian, of the grant, but not before that time. This principle was rightly
^ maintained by Caesar Augustus against Sextus Pompey who, after
the Peloponnesus had been granted to him, at the same time claimed
also the taxes which were due for the previous years.
1 See Guicciardini, Book V [on the contest for Capitanata between the French and Spaniards ;
the former insisted it was a part of the Abruzzi, the latter, of Apulia].
2 See Albert of Strassburg.
3 Plautus, The Persian [line 586] :
The merchandise is yours, so you must price it.
In a matter of this sort the one who is more powerful generally speaks first ; but when terms are being
sought the one who is weaker is wont to speak first. Plutarch, Sulla [xxiv=p. 467 c], says : ' It
is their part to speak first who have need of peace ; it is sufficient for the victor to be silent.'
tilian,
Declama-
Chap.xx] On Good Faith in Ending War 813
XXIII. — On the names of regions
The names of regions must be accepted according to the usage
of the present time,1 and according to the usage of experts rather
than of the common people ; for such matters are usually treated
by experts.
XXIV. — Concerning reference to a former treaty ; and concerning him
through zohom the failure to perform has come
The following rules also are of frequent application. As often
as reference is made to a former or ancient treaty, the qualifications
or conditions of the former agreement are in each case considered
as repeated. Also the party, who was willing to do an act, must be Quin
considered as having done it, if he was hindered from doing it by
the other party with whom the dispute occurred. fons,
ccxlviii
[cccxliii].
XXV. — Concerning delay
However, the statement of some writers, that delay for a brief
period is excusable, is not true unless an unforeseen necessity has
proved a hindrance.2 It is, in fact, not strange that some canons
favour the excusing of such delay, since it is their duty to influence
Christians to that view which is consistent with love for one another.
But in this investigation concerning the interpretation of treaties we
are not now inquiring what is the better course nor what religion
and honour demand of each, but to what limit the application of
a principle, based wholly on that right, which we have called legal,
can be carried.
XXVI. — In case of doubt that interpretation should be adopted which is
contrary to the interest of the party that made the terms
In case the meaning is doubtful, an interpretation is preferably
to be adopted contrary to the interest of him who dictated the
conditions,3 because ordinarily he belongs to the stronger party.
Hannibal says that the dictation of the terms of peace belongs to the [Livy,
XXX.
xxx. 24.]
814 On the Law of War and Peace [Booklll
man who grants peace and not to the one who asks for it. So likewise
Dig. ii. an interpretation is adopted against the seller ; for he has himself
xiv. 39. tQ D]ame for not speaking more plainly.
The other party, however, could rightly accept, to his own
advantage, a condition which admitted of several interpretations.
[580] This is in harmony with what Aristotle said : c Where friend-
ship exists for the sake of advantage, there the advantage of the one
who receives is the measure of what is due.'
XXVII. — Distinctions are drawn between furnishing a new cause for
war and breaking a treaty
Of daily occurrence is the discussion of the question, when
should a treaty of peace be considered broken ? This the Greeks call
a ' breach of faith '. It is, in fact, not the same thing to furnish
a new cause for war and to break a treaty ; but there is a great differ-
ence as regards both the penalty incurred by the one at fault and
the relieving of the innocent party from his pledge in other matters.
A treaty of peace is broken in three ways : by acting either
contrary to what is involved in every peace, or against what was
expressly stated in the treaty of peace, or against what ought to be
understood from the nature of every peace.
XXVIII. — How a treaty of peace may be broken by acting contrary to
what is contained in every peace
A violation of what is involved in every peace will take place if
a warlike attack is made, especially when no new cause is presented.
If the fact can be allegecj with probability, it is better to believe
that the wrong was committed without faithlessness than with it.
[i. cxxiii.] This statement of Thucydides hardly needs mention : ' Not those
who ward off force with force break the peace, but those who are
the first to make the attack.' *
Having established this point, we must see by whom, and against
whom, the armed attack which breaks the peace is made.
1 See Ammianus Marcellinus, beginning of Book XXIX [XXIX. i. 3]. He speaks thus of the
Romans : 4 Intentionally retreating, that they might not be the first to do hurt to any one of the
enemy with the sword and be judged guilty of having broken the treaty, they joined combat only
under the stress of absolute necessity.'
According to Procopius, Persian War, Book II [II. iii = p. 94 b1, the Armenians said in their speech
to Chosroes : * They do not destroy peace who are first in arms, but they who, in time of peace, are
first detected plotting against the others.' In the same author, Vandalic War, Book II [II. xi =
p. 259 c], the Moors say : [590] ' They do not break treaties of peace who have been oppressed by
mjuries and after making complaint openly transfer their allegiance to others, but they who do
violence to those that wish to live as alhes. If under such conditions any take their possessions and
go over to the other side, they do not make God thcir enemy ; but those do who seize the property
of othen and force the owners into the perils of war.'
Chap.XX] On Good Faith in Ending War 815
XXIX. — What if allies have made an attack ?
I see that there are some who think that if those, who have been
allies, make such an attack, the treaty of peace is broken. And I do
not deny that an agreement can be made on such terms, not, to be
sure, that one people should be subject to punishment for another's
act, but that peace should not seem to have been finally made, but
should remain subject to a condition depending partly on intention,
partly on chance.
We ought not, however, to believe that a peace has been made
in this way, unless the fact is perfectly clear. Such an arrangement
is irregular, and not in harmony with the common desire of those
who are making peace. Therefore those who made the attack without
the aid of others will be responsible for breaking the treaty, and the
right to wage war will exist against them and not against the others.
In opposition to this view the Thebans formerly spoke against the Pausanias,
allies of the Spartans. IX [i- &
XXX. — What if subjects have so acted ? Hozv their action should be
considered as approved
If subjects do anything by armed attack without public orders,
it will be necessary to see whether the act of individuals can be said
to have been publicly approved.
From what we have said above, it can easily be understood that 11. xxi.
to show public approval three requisites are necessary : knowledge of 2 ff-
the act, power to punish, and neglect to punish. Knowledge is
shown by the fact that the acts are manifest, or have been made
subject of complaint. Power is assumed, unless the lack of it is
apparent. Neglect is evidenced by the expiration of the period of
time ordinarily taken for the punishment of crimes in each state.
Such neglect is equivalent to a decree ; and in this sense the state-
ment of Agrippa in Josephus should be taken, ' that the king of the [jewish
Parthians would consider the peace broken if his subjects should take ™ar±yi
up arms against the Romans '.
XXXI. — What if subjects should engage in warfare under the command
of others ?
The question is frequently raised, whether the rule just given
holds if subjects do not take up arms on their own account but serve
under others who are carrying on war. Certainly accordiiig to Livy vn [xx.
the people of Caere, in offering an excuse for themselves, say that 5]-
their citizens did not serve with the public consent. Also the Rhodians Geiiius,
r VII. 111
had the same defence. [vi. ut. 5].
1569.27 3 1
rii.9].
816 On the Law of War and Peace [Booklll
It is nearer the truth to consider that such service ought not
to be permitted, unless it is made apparent, by plausible arguments,
that a different point of view has been adopted. This sometimes
happens now in accordance with the ancient example of the Aetolians,
xvii >. who held it right to take plunder from a plunderer.1 Polybius 2
5*' says that the force of this custom was that, though they were not
themselves at war, but others, their friends or allies, were warring,
it was nevertheless [581] lawful for Aetolians without a public
decree 3 to serve on both sides and to take plunder from both. Of
xxxii. the same people Livy says : ' They permit their young men to serve
against their own allies, omitting merely the public authorization ;
and often opposing armies have Aetolian auxiliary troops on both
sides. Formerly the Etruscans, though refusing aid to the Veientes,
did not hinder any of their youth from going as volunteers to that
war.'
XXXII. — What if harm has been done to subjects ? Herein a distinction
is made
1. Again, a treaty of peace ought to be considered broken,
not only if an armed attack is made on the whole body of the state,
but also if such an attack is made on its subjects, of course without
a new cause. For peace is made in order that all subjects may be
safe. Peace, in fact, is an act of the state on behalf of the whole
body and on behalf of its parts. Even more, if a new cause arises,
by the peace it will be permissible for them to defend themselves
Digest, and their property. For, as Cassius says, it is natural to repel arms
with arms. Consequently among equals it is not to be thought easy
to give up this right. But it is not permissible to punish, or to recover
stolen property, by force, except after judgement has been refused ;
for these matters admit of delay, while self-defence does not.
2. But if subjects commit wrongs so continuously,4 and in
a manner so contrary to the law of nature, as to warrant the belief
that they are acting wholly without the approval of their rulers, and
if they cannot be brought into court, as in the case of pirates, it will
be lawful both to recover property from them and to take vengeance
on them, as if on persons who had been surrendered to us. But it
is in truth contrary to the conditions of peace on that account to
attack others who are innocent.
1 Plautus, Truculentus [line 567] :
Plunder from plunder I take.
1 See the same author in the Excerpla [Excerpta de Virtutibus et Vitiis, 6= IV. iii. 1-2J.
* Agathias, Book IV [IV. xiiil, tells the same of the Sabirian Huni in his own time.
4 So Augustus decided on behalf of llerud ununst Svllaeus: Tosephus, lAnliquilies of the lews,]
XVI. xvi [XVI. x. 8J. } J ' J J J
XI. II
xvi.i.§i7,
Chap. XX]
On Good Faith in Ending War
817
XXXIII. — What if harm has heen done to allies ? Herein likewise
a distinction is made
1. Also an armed attack made upon allies breaks a treaty of
peace,1 but only an attack upon those allies who have been included
in the terms of peace, as I showed in examining the controversy over
Saguntum. On this principle the Corinthians insisted in the speech
which is found in the sixth book of Xenophon's Affairs of Greece :
1 We have all taken oath to all of you.'
Further, if the allies themselves have not made the compact,
but others for them, the same rule will nevertheless have to be applied,
after it is fully settled that those allies have ratified the treaty of
peace. For so long as it is still uncertain whether they wish to
ratify it they are to be considered as enemies.
2. The case is different with other allies, such as those united
by ties of blood and marriage, who are neither subjects nor named
in the treaty of peace. Yet it does not follow, as I have said above,
that war cannot be undertaken on that account, but it will be a war
from a new cause.
XXXIV.- — Hozv a treaty of peace may he hroken hy acting contrary to
what has heen stated in the peace terms
As I have said, a treaty of peace is broken also by acting contrary
to what has been stated in the peace terms. Under action, moreover,
is included the failure to do what one should, and when one should.
XXXV. — Whether a discrimination ought to he made hetween the articles
of the treaty of feace
I shall not here admit a difTerentiation of the terms of peace
into those that are of greater and those that are of less importance.
For everything that has been included in the treaty of peace ought
to seem important enough to be kept. Goodness, nevertheless, and
especially Christian goodness, will more easily pardon lighter faults,
especially if repentance is added, so that the following is in point :
Who sin regrets, is almost innocent.
But in order that peace may be still more securely safeguarded it
will be wise to add to the topics of minor importance 2 the provision
that the treaty of peace is not to be broken by anything done in viola-
tion of these, or that arbitration should be tried before it is per-
missible to take up arms, as was provided, according to Thucydides, in
the Peloponnesian treaty.
1 De Thou, Book LXV, year 1578. There is also something pertaining to this in Haraeus, in his
history of Brabant, vol. II, for the year 1556.
2 See an excellent example in the peace treaty of Justinian, between Justinian and Chosroes.
Menander Protector has it [frag. n, p. 10, edit. Dindorf].
■\ I 2
II. xvi. 13.
[VI. v. 37.]
Caepolla,
Consilia,
dcxc.
Decio,
Consilia,
dxxxi.
Seneca,
Agamem-
non [243].
See above,
II. xv. 15.
VII [V.
lxxix].
*3-i
818 On the Law of War and Peace [Booklll
XXXVI. — What if a penalty has been added ?
And I am fully of the opinion that this seems to have been the
intention, if any special penalty [582] has been added ; * not
because I do not know that a contract can be so made that the one,
to whom the injury has been done, may have a choice, whether he
prefers the penalty or withdrawal from the agreement, but because
the nature of the business requires what I have said. This principle
indeed is agreed upon, and has both been stated by us above and
approved by the authority of history, that a treaty of peace is not
broken by the party who f ails to stand by it after the other has broken
it ; for he was only bound conditionally.
XXXVII. — What if necessity has hindered fulfilment ?
But if necessity is the cause why one party has not fulfilled his
promise, as, for example, if the thing has been destroyed or lost, or
the act rendered impossible by some chance, the treaty of peace will
not be considered as broken; for, as I have said, a treaty is usually
not dependent on a chance condition. But the other party will
have his choice, whether he prefers to wait, if there is any hope
that the promise may be carried out later, or to receive an equivalent
in estimated value, or to be freed from mutual engagements corre-
sponding with that item or of equal value.
XXXVIII. — Peace continues, if the one injured so desires
See above, Certainly even after a broken agreement it is within the power
[13'ffT °^ ^ injured party to preserve peace, as Scipio did after many
treacherous acts of the Carthaginians ; no one frees himself from an
obligation by acting contrary to it. And if the provision has been
added, that the treaty of peace should be considered broken by such
an act, this provision ought to be considered as added merely for the
benefit of the innocent party, in case he wishes to take advantage of it.
XXXIX. — How peace may be broken by acting contrary to what belongs
to the special nature of every peace
Lastly we said that a treaty of peace is broken by doing what is
contrary to the special nature of the peace.
XL. — What falls under the term friendship ?
1. Accordingly, acts that are contrary to friendship break a
treaty of peace which was entered into under the terms of friendship.
1 As in thc treaty of the Goths with the Franks ; see Procopius, Gothic War, I [I. xii=p. 342 b].
Chap. XX]
On Good Faith in Ending War
819
For whatever the duty of friendship by itself demands of other men
ought by the right of the agreement to be performed in such a case
as this also. To treaties of friendsKip (since Pomponius teaches us
that there is also a kind of treaty not made for the sake of friendship),
and not to every kind of treaty, I refer many matters arising out of
injuries inflicted without force of arms, and insults, which are fre-
quently discussed by legal experts ; and to such treaties I refer the
statement of Cicero : ' If any wrong has been committed after a return
to friendly relations, it should be thought not due to neglect but
a violation, and imputed not to imprudence but to faithlessness.'
But in such cases also the motive of ill-will should as far as possible
be eliminated from the act.
2. Consequently, if a wrong has been done to a person inti-
mately connected with the party with whom the peace was made,
or to a subject, it will not be considered as done to the party himself
unless the wrong was done openly as an affront to him.
This principle of natural justice is followed by the Roman laws
in cases of cruelty in the treatment of slaves. Adultery, also, and
violation of chastity, will be referred rather to lust than to rupture
of friendly relations, and the seizure of another's property will make
the aggressor guilty of a new act of greed rather than of the breaking
of faith.
3. When no new cause is presented, threats that are truly
savage are ihconsistent with friendly relations. To this head I shall
refer also the building of fortresses on the boundaries, not for defence
but for the purpose of inflicting harm ; and an unwonted levying
of troops, if it shall be apparent, from satisfactory indications, that
these are being levied against no one else than the party with whom
the peace has been made.
XLI. — Whether it is contrary to friendship to receive subjects and
exiles
I. It is not contrary to friendship to admit individual subjects *
who wish to migrate from one government to another. Such liberty
in fact, as I have said elsewhere, is not only natural but also advan-
tageous.
1 Solon says [Plutarch, Solon, xxiv=p. 91 f] : ' He did not allow any strangers to be enrolled in
the list of citizens except those who had been banished for ever from their own country, or had moyed
to Athens with their entire household in order to practise some trade.' According to Appian, Selections
on Embassies, no. xxv [=Macedonian Afairs, xi. 6], Perseus said : ' I have done this in accordance with
the common right of mankind, as you also receive those who have been expelled from other places.'
This common right is usually confirmed and strengthened by treaties.
See the peace of Antiochus in Polybius, Selections on Embassies, no. xxxv [=XXI. xln. 18], and m
Livy [XXXVIII. xxxviii] ; the peace between the Romans and Persians in Menander Protector [frag.
11, p. 10, edit. Dindorf ] ; and Simler concerning the treaties among the Swiss. Strabo, Book XVI
[XVI. ii. 14], bears witness: 'While the kings of Syria were fighting with each other, the Aradians
obtained the right to admit fugitives, but not to permit their departure.'
Digest,
XLIX,
xv. 5.
For
Gabinius
[see
Jerome,
Apology
against
Ruf., I. i].
Digest,
XLVII.
x. 15
§35-
Inst., IV.
iv. § 3-
Alexander,
Consilia,
II, no. 3.
II. v. 24
820
On the Law of War and Peace
[Book III
;n. v.
XLII
[XU. 7)
25-]
[i-p.
105 c.]
[III.
8-]
II. xxi.
3ff-
Under the same principle I include the granting of asylum to
exiles. For over exiles the state has no right, as I have noted else-
where, quoting Euripides. In Livy Perseus rightly inquires : ' What
is accomplished by sending any one into exile, if there is not going
to be a place anywhere for the person exiled ? ' In the second speech
On Leuctra, Aristides says : [583] ' It is a common right of mankind
to admit exiles.'
2. As I have said elsewhere,1 it is clearly not permissible to
admit towns or large aggregations, which constitute an integral
part of a state. It is equally unpermissible to admit those who, by
reason of an oath or in some other way, are under an obligation of
service or of slavery. Moreover we have previously stated that
among certain peoples the same rule has been introduced by the law
of nations concerning those who are slaves by fortune of war. But
also we have treated elsewhere of the surrender of those who, though
not driven into exile, are seeking to escape a justly deserved penalty.
XLII. — How war may be ended by drawing lots
The result of a war cannot in all cases be made subject to the
chance of drawing lots, but only in those cases in which the issue
is one over which we have full power. For the obligation of the
state to protect the life, chastity, and other rights of its subjects,
and of the king to protect the welfare of the state, is too great to
permit the disregard of those considerations which stand in the
most natural relation to the defence of themselves and others. Never-
theless, if on a careful estimate the party attacked in an unjust war
is so far inferior that there is no hope of resistance, it is apparent
that a decision by lot can be offered, in order that a certain peril
may be avoided by recourse to an uncertain one. This, in fact, is
the least of the evils.
Pausanias,
V[iv
,v.]
Flortie-
Rium
67.]
XLIII. — How war may be ended by a set combat ; and whether this is
lawful
1 . There follows a much disputed question concerning combats
which are agreed upon with definite numbers, for the sake of ending
a war ; such combats, for example, with one on each side, as that of
Aeneas and Turnus, or Menelaus and Paris ; with two on each side,
as that between the Aetolians and the Eleans ; with three on each
side, as that between the Horatii, who were Romans, and the Curatii,
who were Albans ; or with thirty on each side, as that between the
Lacedaemonians and the Argives.
II. v. 24. See also Bizarri, Book XII.
Chap. XX]
On Good Faith in Ending War
821
2. If we consider only the law of nations, in a strict sense,
there should be no doubt that, according to it alone, such contests
are lawful ; for this law permits the killing of enemies without dis-
tinction. If, again, the opinion of the ancient Greeks and Romans,
and of other nations, were true, that each man is the master of his
own life without restriction, then such combats would not lack moral
justice also. But I have already several times said that this opinion
is in conflict with true reason and the precepts of God. Elsewhere
I have shown, both by reason and by the authority of the Sacred
Writings, that whoever kills a man on account of things which we
can do without sins against the law of love for his neighbour.
3. Let us now add that a man sins also against himself, and
against God, who values so cheaply the life which was granted to him
by God as a great favour. If the issue at stake, such as the safety
of many innocent persons, is worthy of war, we must strive with all
our strength to win. To use a set combat as an evidence of a good
cause, or as an instrument of divine judgement, is unmeaning, and
inconsistent with the true sense of duty.
4. There is only one condition which can render such a combat
just and patriotic, from the point of view of one side merely ; that
is, if otherwise the expectation is in all respects warranted that the
party supporting the unjust cause is going to be the victor with
great slaughter of innocent persons. He, in fact, should be subject
to no censure who prefers to fight in the way that will give to him
the greatest probability of success. But this also is true, that some
acts, which are not done rightly, are not approved as right by others,
but are held permissible for the avoidance of more serious evils
which cannot otherwise be escaped ; as in many places base usurers
and prostitutes are tolerated.
5. Therefore, as I previously said, when it is a question of
avoiding war, if two persons, who are striving for the sovereignty,
have prepared to contend with arms against each other, the people
can allow such a combat in order that a greater calamity, otherwise
imminent, may be avoided ; so the same thing will have to be said
when it is a question of ending a war. Thus [584] Cyrus chal-
lenged the Assyrian king ; l and, according to Dionysius of Halicar-
nassus, Mettius said that it would not have been an unfair thing
for the leaders themselves of the peoples 2 to decide the question
1 Long before that time Hyllus challenged Eurystheus. See Euripides, Children ofHercules [800 ff .].
2 Such is the reply which the inhabitants of Adrianople made to Mahomet, referring to him and
to Musa Zeleb ; Leunclavius, Book XI. So Cunibert, king of the Lombards, challenges Alachis ;
Paul Warnefrid, V [V. xl]. Thus Pharnacus wished to fight with the leader of the Sauromatae for
the fortress of Cherso, in order that the populace might not be subjected to peril on account of their
dispute, as Constantine Porphyrogenitus relates in the chapter on the fortress Cherso [De Administrando
Imperio, liii, p. 150].
See Pontanus, Danish History [Book V, p. 151], for an example of a single combat [591]
II. xix. 5
and xxi. 1
[xxi. 11].
II. i. 12 ff.
Thomas,
II. ii. qu.
95, art. 8
and Ca-
jetan
thereon.
Cajetan,
as cited
above.
II. xxiii
[10].
Aegidius
Regius,
disp. 32,
dub. 2,
no. 18.
[Xen.,
On the
Training
of Cyrus,
V.iu.5.3
III [xii. 3].
822 On the Law of War and Peace [Booklll
by fighting with each other, if the contest had been for their own
power or rank and not for that of their peoples. So we read that
the Emperor Heraclius * fought in single combat with Chosroes, the
son of the Persian king.
XLIV. — Whether the act of kings in such cases binds their peoples
On the other hand, those who thus refer a controversy to the
outcome of a combat can indeed deprive themselves of whatever
right they themselves possess, but in those kingdoms which are not
patrimonial they cannot also give a right to another who does not
possess it. In such cases, therefore, in order that a treaty may be
valid, it is necessary to add the consent both of the people and of
those persons, already born, who have the right to the succession.
In fiefs which are not free the consent of the lord or seigneur of the
fief also is required.
XLV. — In such combats who is to be judged the victor ?
i. Often in such combats the question is raised, which of the
two should be considered the victor.2 Only those can be considered
vanquished on whose side all have either fallen or taken to flight.
iii rii. 3]. So, according to Livy, withdrawal to one's own territory or towns
is a sign of defeat.3
2. In three famous historians, Herodotus, Thucydides, and
Polybius, three disputes about victory are presented, and of these
the first refers to a set combat. But if any one views the evidence
correctly he will find that in all these contests the parties separated
Hero- without a true victory. For the Argives were not put to flight by
nxxxiii1 Othryades, but had gone away at the coming of night, thinking that
they were victors, and intending to report the victory to their people.
Thucy- Neither had the Corcyraeans put to flight the Corinthians, who,
i^d1 a^ter having fought successfully, had perceived a strong Athenian
livj. fleet and had gone away in good order without making any test of
strength with the Athenians. Philip of Macedon had indeed captured
a ship belonging to Attalus, after it had been deserted by its men,
but he had completely failed to put the fleet to flight ; and so, as
xvi [ij. Polybius remarks, he conducted himself, rather than considered him-
self, as a victor.
for the kingdom. See also what the historians relate concerning the challenges between the Emperor
Charies V and Francis I, king of France.
M Aimoin, IV. xxi, and Fredegarius, lxiv.
• Ennius [frag. 330, in Servius, On ihe Aeneid, XI. 307]:
Who conquers is not victor, if the vanquished owns it not.
See Scaliger on the words of Festus, herbam do.
' And in Guicciardini, Book II.
Chap. XX]
On Good Faith in Ending War
823
3. The other evidences — the collecting of spoils, the giving up
of dead for burial,1 and challenging to battle a second time, which
in the passage cited and in Livy you sometimes find mentioned as
signs of victory — prove nothing in themselves, excepting in so far
as, in connexion with other signs, they bear witness to the flight of
the enemy. Surely in case of doubt the one who has retired from the
field of battle may be presumed to have fled. When, however, there
are no sure proofs of victory, the issue remains in the same condition
as before the battle, and must be referred either to battle or to new
agreements.
XXIX
and XL.
XLVI. — Hozv war may be ended by arbitration ; and here arbitration
is understood to be zvithout appeal
1. Proculus teaches us that there are two kinds of arbitrators.
One is of such a sort that we ought to render obedience, whether
he is just or unjust ; and this kind of arbitration, he says, is found
when the parties resort to an arbitrator under mutual promises to
abide by his decision. The other deals with matters of such a kind
that they ought to be referred to the decision of a just man ; and of
this type we have an example in the reply of Celsus : ' If a freedman ',
he says, ' has sworn to give as many services as the patron has judged
proper, the decision of the patron will not be valid, unless the freed-
man has thought it fair.'
While it was possible for this interpretation of an oath to be
introduced by the Roman law, it is not in harmony with the simple
meaning of the words viewed by themselves. Nevertheless this
remains true, that an arbitrator can be chosen in either of two ways.
Either he is charged with the task of reconciliation only, as we read
that the Athenians were when selected as arbitrators between the
Rhodians and Demetrius ; or he serves as one whose decision must
be absolutely obeyed. It is the latter class with which we are here
dealing, and of which we said something above, when we spoke of
the methods of avoiding war.
2. Although municipal law may make provision for arbitrators
to whom resort is had under promises on both sides, [585] and
in some places has provided that it shall be lawful to appeal from
them and to make complaint of injustice, nevertheless such a pro-
cedure cannot become applicable in relation to kings and peoples.2
1 Plutarch, Agesilaus [xix= p. 606 b], says : ' But after the enemy had sent to ask permission to
bury their dead he granted it, and having in that manner obtained a testimony of victory he went
away to Delphi.' Likewise in the Nicias[vi=p. 527 ab] : ' And yet according to established and accepted
custom those who had received permission to bury their dead were thought to have given up all claim
to the victory, and those who had obtained such a request did not have the right to set up a trophy.'
2 Mariana, XXIX. xv ; Bembo, IV [fol. 62]. There are many examples of peace made by
arbitration in Kromer's Poland, Books X, XVI, XVIII, XXI, XXIV. XXVII, XXVIII. Theie is one
also in the second book of the Danish History by Pontanus. Cf. also above, II. xxm. 18 [II. xxin. 8].
Digest,
XVII.
ii. 76.
Digest,
XXXVIII.
i. 30.
II. xxii
[II. xxiii.
8].
824 On the Law of War and Peace [Booklll
For here there is no higher power, which can either hold fast or
loosen the bond of the promise. Under such conditions, therefore,
the decision of arbitrators, whether just or unjust, must stand abso-
Naturai lutely, so that one may rightly apply here the saying of Pliny : ' Each
^re/ace" makes the man whom he chooses the supreme judge of his case.' It
[19]- is, in fact, one thing to make inquiry concerning the duty of the
arbitrator, and another to inquire concerning the obligation of those
who promise.
XLVII. — In case of doubt it is understood that arbitrators are bound to
decide according to law
1. In respect to the duty of an arbitrator, the point must be
considered, whether he has been chosen in the place of a judge, or
On with somewhat larger powers. Seneca seems to think the latter charac-
fr^vif5' teristic of an arbitrator, when he says :
L ' v The condition of a good case seems to be better if it is referred to a judge rather
than to an arbitrator ; for the rules of law apply to the former and set certain limits,
which he may not pass. In the case of the arbitrator, a religious scrupulousness, free and
unchecked by restraints, can both take away and add to, and direct the decision not as
the law or justice advises, but as humanity and pity move.
Rhdotic, Aristotle also says that ' it is the part of a fair and kindly man
fi ^fii to Pre^er to have recourse to an arbitrator rather than to go to
19]. law ' ; and he adds as the reason, ' For the arbitrator has regard
to what is fair, but the judge follows the law. Indeed the arbitrator
was brought into existence for this very purpose, that equity might
prevail.'
2. In the passage just quoted equity does not properly mean,
as elsewhere, that division of justice which interprets more narrowly
the general import of law according to the intention of the lawgiver,
for such interpretation has been committed to the judge also ; rather
it means everything which is better done than left undone, even
outside of the rules of justice properly so called.
Such arbitrators, however, as are common between private
persons and citizens of the same country are especially recommended
also to Christians by the Apostle Paul (1 Corinthians, vi). Yet
in a case of doubt it ought not to be understood that so great
power has been granted ; in doubtful cases, in fact, we follow the
narrowest interpretation. But this statement is especially in point
in respect to those who hold sovereign power ; for since they have
no common judge, we must consider that they have restricted the
arbitrator by those rules by which the office of a judge is usually
restricted.
Chap.XX] On Good Faith in Ending War 825
XLVIII. — Arbitrators ought not to decide concerning possession
Nevertheless this observation should be made, that arbitrators
chosen by peoples or by sovereigns x ought to render a decision
regarding the main point at issue, but not in regard to possession.
For decisions regarding possessions belong to municipal law ; by the
law of nations the right of possession follows ownership. Conse-
quently, while the case is under advisement, no change ought to be
made, not only to avoid prejudice, but also because recovery is difficult.
In his account of those who served as arbitrators between Carthage
and Masinissa, Livy says : ' The commissioners made no change in [XL. xvii.
the right of possession.' 6-l
XLIX. — What is the force of surrender pure and simple ?
1. The acceptance of an arbitrator is of a different sort when
any one entrusts the decision regarding himself to an enemy ; for
this is pure surrender, which makes the one who surrenders a subject,
and confers the sovereign power on him to whom the surrender is
made. The Greeks call this ' yielding the power over oneself '. So
we read that the Aetolians were asked in the senate, whether they Livy,
would leave the decision regarding themselves to the Roman people. *j!P*
According to Appian the advice of Publius Cornelius Lentulus in xiv
regard to the Carthaginian state at the end of the Second Punic J^£an'
war was as follows : wars,
xiv.
Let the Carthaginians entrust themselves to our decision, as conquered peoples are ix. 64].
accustomed to do, and as many have done heretofore. We shall then look into the matter,
and if we shall have granted anything to them they will be grateful to us ; [586] for
they will not be able to call it a treaty.
That, furthermore, makes a very great difference. So long as we make treaties with
them they will always be finding pretexts, as if wronged in respect to some point of the
treaty, in order that they may break it. For openings for controversy always remained,
since many points are of doubtful interpretation. But when we have taken away their
arms from them as having surrendered, and have brought their very persons under our
power, then at length they will understand that they have nothing that is their own ;
then they will lose heart, and whatever they may have received from us they will gladly
accept as if bestowed from another's bounty.
2. But here we ought also to distinguish what the conquered
ought to endure ; again, what the victor can do lawfully, what even
in conformity with the full discharge of duty, and finally, what it
is most fitting for him to do.
After the surrender there is nothing that the vanquished may
not have to suffer. He is, in truth, already a subject; and, if we
consider only the strictly legal rights of war, he is in such a position that
1 The Duke of Savoy said this in the contest about Saluzzo. See de Serres [or rather, his con-
tinuator] on Henry IV.
XXXVII
[xlix. 4].
826
On the Law of War and Peace
[Book III
XXXVII
[vii. i].
III. viii. 4.
VI, 11
[XXVIII.
xxxiv. 7].
III. xi.
18 [16].
everything can be taken from him — his life, his personal liberty, and
the property not only of the state but also of individuals.
In another passage Livy says : ' The Aetolians, having sur-
rendered at discretion, were afraid that vengeance would be wreaked
upon their persons.' Elsewhere I have cited the following : ' When
all things have been surrendered to him who is the more powerful
in arms, it is for the victor to judge, and to decide, what he wishes
the conquered to have, what he wishes them to give up by way of
punishment.' The following statement of Livy bears upon the same
point :
It was an ancient custom of the Romans not to assume sovereignty over a people
as conquered — a people with which they were not united in friendship either by treaty
or by common laws — until all things, divine and human, had been surrendered, hostages
had been accepted, arms taken away, and garrisons placed in the cities.
Also we have shown that the putting to death of those who had
surrendered was sometimes lawful.
III. XV.
XIII
[xxi. 6]
[XIII.
xxiii. 5.]
[Civil
Wars, V.
v. 45-]
12.
L. — What is the duty of the victor toward those who make an uncon-
ditional surrender ?
1. But in order that the victor may not do anything unjustly
he ought first to see to it that he kill no one, unless this fate is deserved
by the prisoner's own act ; again, that he take nothing from any one
except as a lawful penalty. Moreover within this limit,1 so far as
one's own safety allows, it is always the part of honour to incline to
clemency and generosity ; sometimes, in consideration of the cir-
cumstances, such a course is even made necessary by the rule of
custom.
2. As I have said elsewhere, wars are well ended when they
terminate with pardoning. According to Diodorus, Nicolaus of
Syracuse says : ' They surrendered themselves with their arms,
relying on the clemency of the victor. Therefore it would be shameful
for them to be deceived in their expectation of humane treatment
on our part.' Afterward he adds : ' Who of the Greeks ever thought
that those ought to be punished relentlessly who entrusted them-
selves to the clemency of the victor ? '
In Appian Octavius Caesar, addressing Lucius Antony, who had
come in order to surrender,
says
If you had come to make a treaty, you would have found me both a conqueror and
a man inccnsed by wrong-doing. Now, since you yield yourself, your friends, and your
army to my decision, you take away my anger, you take away also that power which you
would have been forced to yield to me in a treaty. For now I am obliged to take into
1 See the famous example of Ferdinand, king of Leon, in Mariana, XI. xv. Also recall what I have
said above, III. xi. 14-15.
Chap. XX]
On Good Faith in Ending War
827
account, along with what you ought to suffer, also a second consideration, what it is right
for me to do ; and I shall give preference to the latter.
3. In the Roman histories the expression ' to surrender oneself
to the good faith ', or ' to surrender oneself to the good faith and
clemency ', is often found. So in Livy, Book XXXVII : ' In a kindly
manner he listened to the embassies from neighbouring peoples
surrendering their states to his good faith.' Also in Book XLIV,
where the narrative concerns [587] King Perseus, we read :
' Since Paulus was insisting that he should surrender himself and
his possessions to the good faith and clemency of the Roman people.'
Still the fact should be recognized that by these words nothing else
is understood than absolute surrender ; and the word translated
good faith * in these passages does not suggest anything else than the
probity of the victor, to which the vanquished commits himself.
4. In Polybius and Livy there is a f amous story 2 about Phanaeas,
the ambassador of the Aetolians, who in his speech to the consul
Manius yielded as far as to say : ' Therefore the Aetolians have
resolved to surrender themselves and their possessions ', as Livy
states, * to the good faith of the Roman people.' In response to
a question of the consul, he affirmed this a second time ; then the
consul demanded that certain persons who had stirred up the war
should be surrendered to him without delay. Phanaeas took excep-
tion to this and said : 6 We have surrendered ourselves to your good
faith, and not to slavery,' adding that what was ordered was not
consistent with Greek custom. The consul replied that he did not
care what the custom of the Greeks was ; that according to Roman
custom he had power over those who had surrendered to his dis-
cretion ; and he gave orders that the ambassadors be put in chains.
In the Greek author is the question : ' Are you here discussing duty
and propriety, when you have already surrendered yourselves to our
good f aith ? '
From these words it is clear with how great impunity, and
without violating the law of nations, he can act to whose good faith
a people has surrendered. Yet the Roman consul did not take advan-
tage of this power, but both dismissed the ambassadors and gave to
the council of the Aetolians an opportunity of deliberating anew.
Similarly the Romans are said to have replied to the Faliscans,
that they had been given to understand that the Faliscans had sur-
rendered themselves not to the power, but to the good faith of the
[ix. 7-]
[iv. 7.]
Livy,
XXXVI
[xxviii. 1.]
Valerius
Maximus,
VI. iv
[VI. v 1].
1 Polybius says [Selections on Enibassies, xiii=XX. ix]: 'Among the Romans the same force is
found in the expressions " to entrust oneself to another's faith" and " to give to the victor unrestricted
power of deciding concerning oneself".' ' ■■ _
The Greeks say, ■ to surrender themselves to justice', as m Thucydides, Book III [III. IxvnJ,
or ' to yield the power over themselves', as in Diodorus Siculus, Book XIV [XIV. cxi].
2 Selections on Embassies, no. xiii [= XX. x].
828 On the Law of War and Peace [Booklll
Livy, Romans. We read also of the Campanians, that they had come into
y^j 1 the good faith of the Romans not by treaty, but by surrender.
5. You would, in truth, not ineptly apply to the duty of him
on to whom a surrender has been made this passage of Seneca :
n*v?M ' Clemency possesses unlimited right of decision. It judges not
according to the letter of the law, but according to what is just and
good ; and it may acquit, or assign a penalty as great as it will.'
And I do not think that it makes any difrerence whether the one
who surrenders says that he surrenders himself to the wisdom, or to
the moderation, or to the mercifulness of the victor. All these
words are merely gracious expressions. The fact remains, that the
victor becomes absolute master.
LI. — Concerning conditional surrender
Xevertheless there are also conditional surrenders. These either
safeguard the interests of individuals, that the safety of their lives,
or the freedom of their persons, or even certain property may be
reserved ; or they make provision for the whole body of the people.
Such surrenders in some cases may even introduce a sort of mixed
1 ni. 17. sovereignty, as I have explained elsewhere.
LII. — Who can, and should, be given as hostages ?
Hostages and pledges are accessories of treaties. I have said
that hostages are given x either of their own will, or by him who
holds the power and authority. For in the supreme civil authority
is included the right over the acts as well as over the property of the
subjects. But the state or its ruler will be obligated to compensate
the person who suffers, or his relatives, for the inconvenience.
If there should be several persons, and it should make no differ-
ence to the state which of these should go as a hostage, it seems
clear that pains should be taken to have the choice settled by lot.
The lord of a fief does not possess the right to select a vassal as
a hostage unless the vassal is also a subject. For the fealty and duty,
which the vassal owes, do not go so far.
LIII. — What the right over hostages is
I have said that according to the strict law of nations a hostage
can be put to death ; but that is not also in accord with moral justice,
unless there is a fault on the part of the hostage meriting such punish-
ment. Hostages, moreover, do not become slaves. Furthermore, by
the law of nations they can both hold property and leave it to their
1 In this work, III. iv. 14 ; see also III. xi. 18.
Chap. XX] On Good Faith in Ending War 829
heirs ; although the Roman law provided that their property should Digest,
go to the state treasury. xlix.
0 J xiv. 31.
LIV. — Whether a hostage may lawfully escape
Is the question raised whether a hostage may lawfully make his
escape ? It is agreed that he may not, if [588] at the beginning,
or afterward, he gave a pledge, in order that he might have more
liberty. Under other conditions it seems to have been the intention
of the state not to bind its citizen not to try to escape, but to give
to the enemy the power to guard him as it might wish.
Thus the deed of Cloelia can be defended. But, although she Uvy,
had not herself done wrong, yet the state could not receive and "^f"'
retain the hostage.1 So Porsenna said : ' If the hostage is not sur-
rendered, the treaty will be considered as broken ' ; then we read :
6 The Romans restored the pledge of peace in accordance with the
treaty.'
LV. — Whether a hostage may be lawjully detained for any other reason
The obligation arising from the use of hostages, moreover, is
distasteful, not only because it infringes liberty, but also because it
arises from the act of another. Consequently, a narrow interpreta-
tion is here in point. Hence it follows that hostages given on one
account cannot be detained on another. This is to be understood as
applying in case some other promise has been made without the
addition of hostages.
If, however, good faith has already been violated in another
matter, or a debt contracted, the hostage can then be retained, not
as a hostage, but in accordance with the law of nations, according
to which subjects can be detained ' by reprisal' (/car' avBpoXrjxpLav) see
on account of an act of their rulers. Nevertheless provision may be jh°ve{u
made that this should not happen, by adding an agreement regarding [h£ ii. 3]-
the return of the hostages when the matter on account of which
they were given has been closed up.
LVI. — A hostage is set free at the death of the one for whom he came as
hostage
One who has been given as a hostage, merely to take the place
of a captive or hostage, is set free at the death of the latter. For
Ulpian says that at the moment the latter dies the right of pledge
1 See Plutarch, Publicola [xix= p. 107 a] on this matter. To the verse of Virgil [Aeneid, VIII. 651] :
And Cloelia broke her bonds and swam,
Servius adds, ' bonds of the treaty'.
83o
On the Law of War and Peace
[Book III
Digest,
XLIX.
xv. 15.
Syrian
Wars
[viii. 47]-
XXXIV
II. xvi. il
[II. xvi.
16J.
II. XV. 18
[II. xv. 16].
Alberico
Gentili, De
lure Belli,
II. xix.
is destroyed, as in the case of a ransomed captive. Therefore, as in
Ulpian's inquiry the ransom, which was to take the place of the
person, is not due, so here the person who was made the substitute
of another will not remain bound.
Thus according to Appian Demetrius not unjustly demanded
that he be released by the Roman senate, since he had been given
as a hostage in the place of Antiochus, and Antiochus had died.
Justin, following Trogus, says : ' Demetrius, a hostage at Rome,
having learned of the death of his brother Antiochus, came before
the senate saying * ' that he had come as a hostage when his brother
was living, but, now that his brother was dead, he did not know for
whom he was a hostage.'
LVII. — Whether a hostage may be retained after the death of the king
who gave him
The decision whether a hostage may still be held after the death
of the king who made the treaty is dependent on the question treated
by us elsewhere, whether the treaty should be considered personal
or real. For accessories cannot cause us to withdraw from the rule
in the interpretation of the main articles, the nature of which the
accessories themselves ought to follow.
LVIII. — Sometimes hostages are under obligation as principals, and one
is not bound for the act of the other
It should be added, in passing, that sometimes hostages are not
mere accessories to the obligation, but are in fact the principal party.
This would be the case, for example, when any one has promised
under contract to perform an act not his own, and because he is
bound for the resulting damage, if the act is not performed, his
hostages are bound in his place ; and I have said elsewhere that
this seems to have been the decision regarding the Caudine treaty-
compact. On the other hand the opinion of those who hold that
hostages without their consent can be mutually bound for each
other's acts is not only severe but also unjust.
LIX. — Of what sort is the obligation arising from pledges of property ?
Pledges of property have certain points in common with hostages,
and certain points peculiar to themselves. It is a characteristic
common to both, that they are retained even on account of another
debt, unless faith has been pledged to the contrary. It is a charac-
teristic peculiar to pledges of property that an agreement made
1 This word needs to be restored in the text to make the sentence grammatical.
Chap.xx] On Good Faith in Ending War 831
concerning them is not taken as strictly as one concerning hostages.
For the matter is not equally distasteful, since things are made to
be held, but men are not.
LX. — When the right of redemption is lost
This also I have mentioned elsewhere, that no length of time 11. iv.
can bring it about that a pledge of property should not be redeem- i^11'1^
able, if that is performed for which the pledge was given. For an
act, which has an old and familiar cause, is not supposed to arise
from a new cause. Thus the patience of the debtor should be ascribed
to the old contract, and not to the abandonment of ownership,
[589] unless inferences that are warranted suggest another inter-
pretation ; as if a person, prevented at the time when he wished to
redeem a pledge, had allowed the matter to pass without mention for
so long a time that it might warrant the presumption of consent.
1569.27 3 K
[S92]
CHAPTER XXI
ON GOOD FAITH DURING WAR ; HEREIN ALSO CONCERNING
A TRUCE, THE RIGHT OF SAFE-CONDUCT,
AND THE RANSOM OF PRISONERS
[Aeneid,
X. 532-J
Antuils,
XIV
[XXX
and//i$-
tories,
III [lxxxi].
[Iliad,
XXII.
261.]
[VIII. i. 4.]
Nic. Eth.,
[I. iii;]
VIII [vi].
[OnNic.
Eth., I.
xiv.]
[VI. i.]
Horace,
Satires,
I. iii
[129-32].
[I. "v. 4.]
M
I. — What a truce is, and whether this interval is to he considered as
peace or war
1. Even during a war the sovereign authorities are accustomed
to grant certain rights, which, with Virgil and Tacitus, I may call
1 intercourse of war ', or with Homer, ' solemn agreements '. Among
these are included the truce, the right of safe-conduct, and the ransom
of prisoners.
A truce is an agreement by which warlike acts are for a time
abstained from, though the state of war continues. I say, ' though
the state of war continues ', for, as Cicero says in the eighth Philippic,
there is no middle ground between war and peace. War, further-
more, is the name of a condition which can exist even when it does
not carry forward its operations.
Aristotle says : ' It may happen that a man may be endowed
with virtue, and either sleep or pass his life in inactivity.' Elsewhere
the same author says : * Distance between places does not destroy
friendship, but hinders the exercise of it.' Andronicus of Rhodes
remarks : ' An accomplishment may so exist that it accomplishes
nothing.' Eustratius comments thus on the sixth book of the Nico-
machean Ethics : ' Skill considered in relation to power simply is
spoken of as potentiality ; but if compared with the action itself or
its exercise it is called a power, as the surveyor's art in a sleeping
surveyor.'
Just as Hermogenes, though silent,1 yet remains
A singer and the best of players ; and Alphene,
Sly fellow, when his tools of trade were cast
Aside, and closed his shop, was still a cobbler.2
2. In like manner, then, as Gellius also says : ' A truce is not
peace, for, though [593] flghting ceases, the war continues.'
Also in the Panegyric of Latinus Pacatus we read : * A truce suspends
the acts of war.' This I say that we may know that, if an agreement
has been made which is to be valid in time of war, this will be valid
also in a truce, unless it is clearly apparent that the agreement applies
not to the state of war but to its acts.
1 (599] Seneca, On BeneRts, V. xxi [IV. xxi. 4] : ' He is even eloquent who is silent.
• In the passage just cited, Seneca says : * He also is an artisan who is
tools for practising his trade.'
832
not supplied with the
Chap.XXI]
On Good Faith during War
833
On the contrary, if anything has been said in regard to peace,
this will not be applicable in time of truce ; although Virgil spoke
of a truce as a mediatress of peace, and Servius, on the same passage,
as a temporary peace. So the Scholiast on Thucydides calls a truce
1 an ephemeral peace in travail of war ' ; and Varro, a respite of military
operations, lasting a few days. All these are not definitions but
descriptions, and that, too, figurative. In the same class also is the
characterization of Varro, when he called a truce the vacation of
war ; he might likewise have called it a slumber of war. Thus
Papinius Statius called the holidays, which were free from lawsuits,
peace. Aristotle called sleep the chain of the senses, and following
his example you may rightly call a truce a chain of war.
3. Gellius rightly criticizes the explanation of Marcus Varro,
which Donatus also follows, because Varro added the words * lasting
for a f ew days ' ; he shows that truces are frequently given also for
hours, and I may add likewise for twenty, thirty, forty, and even
for one hundred years. There are examples of such truces in Livy,
and they disprove the following definition of Paul the jurist also :
' A truce exists when, for a brief period and for the present time, an
agreement is made that the two sides refrain from attacking each
other.'
4. Nevertheless, if it shall be apparent that the sole and only
determining cause of an agreement was the cessation of warlike acts,
it may happen that what has been said of a time of peace will in that
case apply during the truce, not from the force of the word, but
from a sure inference as to the intention, regarding which we have
spoken elsewhere.
II. — The derivation of the zuord
Moreover, it seems clear that the word induciae (truce) is not,
as Gellius thinks, derived from inde uti iam (then as now) ; nor
from endoitu, that is, introgressu (an entering in), as Opilius proposes,
but [from inde otium\ because inde, that is, ' from a certain time ',
there may be otium (rest), just as the Greeks call a truce e/cexei/na
(a holding of hands).
It is, in fact, apparent, even from Gellius and Opilius, that the
ancients wrote this word with the letter t and not c ; and, though
now used as a plural, it was formerly without doubt also a singular.
The old spelling was indoitia, for then they pronounced otium as
oitium, from the verb oiti, which we now spell uti, just as from poina
(now written poena) punio x is derived, and from Poinus (now Poenus)
Punicus comes.
[Aeneid,
XI. 133.]
[I. xl.]
[Aulus
Gellius, I.
XXV. I.]
[Silvae,
IV. iv. 40.]
[On Sleep
and Vigil,
i, iii.]
I. xxi
[I. xxv].
On Te-
rence's
Eunuch,
I.i. [line
60].
Digest,
XLIX.
xv. 19. § 1.
III. xvi.
20 [II.
xvi. 20].
Gellius,
XIX. viii
[13] •
1 See Servius, On the Aeneid, X [X. 24], on the word moerorum.
3 K2
«34
On the Law of War and Peace
[Book III
XIX. viii.
OnTe-
rence's
Eunuch
[line 60].
Livy [X.
xlvi. :
Plutarch,
Justin.
Just as from the plural ostia, ostiorum has been derived the
singular Ostia, Ostiae,1 so from indoitia, indoitiorum has come indoitia,
indoitiae ; hence indutia, the plural of which, as I have said, is now
in use. Formerly, as Gellius notes, it was also used in the singular
number. Donatus was not far out of the way when he wished to
explain induciae from the fact that a truce furnished a rest for some
days.
A truce, then, is a period of rest in war, not a peace. And so
the historians use the term properly in saying, as they frequently
do, that a peace was refused, a truce was granted.
Angelus,
On Dig.,
II. xiv.
27. § 1.
Martinus
Laudensis,
[De Bello,]
qu. 29.
IV [3
14].
III. — A new declaration of war after a truce is not necessary
In consequence, after a truce there will be no need of a new
declaration of war. For when the temporary obstacle is removed
the state of war, which was not dead but sleeping, asserts itself, just
as the right of ownership ,and the power of the father assert them-
selves in a man who has recovered from insanity.
Nevertheless, we read in Livy that, in accordance with the decision
of the treaty priests, war was declared upon the termination of a truce.
The fact is, however, that the ancient Romans wished by those
unnecessary precautions to show how much they loved peace, and
how just the causes were by which they were drawn into war. This
is implied by Livy himself :
They had fought recently near Nomentum and Fidenae with the Veientes. [594]
A tnice, not a peace, had been made, the limit of which had expired, but before that date
of expiration the Veientes had again taken up arms. Nevertheless heralds were sent, but
when on oath they demanded restitution, in the manner of our ancestors, their words
were not listened to.
Dig. L.
xvi. 134.
IV. — How the period of time jixed for a truce ought to be reckoned
1. The duration of a truce is commonly made either a con-
tinuous period, as for one hundred days, or with the designation of
a fixed limit, as up to the first of March. In the former case the
calculation must be made exact to the minute. This, in fact, is in
accord with nature ; for the reckoning of time by civil days arises
from the laws and customs of peoples. In the other case doubt is
generally raised, whether the day, the month, or the year, which
has been fixed for the duration of the truce, should be understood
as reckoned inclusively or exclusively.
2. By nature, at any rate, there are two kinds of boundaries,
one within the thing, as the skin is the boundary of the body, and
And ostrea, ostreae, was formed frora ostrea, ostreorum.
Chap. XXI]
On Good Faith during War
835
the second outside of the thing, as a river is the boundary of a countiy.
Boundaries which are fixed according to choice can be established
by both methods. But it seems more natural that the boundary,
which is a part of the thing,1 should be assumed. Aristotle says :
* That is called the boundary which is the extreme part of each
thing.'
Such an assumption, furthermore, is not inconsistent with
practice. * If any one has said that something will happen before
the day of his death, that day also, on which he has died, is counted.'
Spurina warned Caesar of a danger which would not be delayed
after the fifteenth of March. When accosted on the fifteenth, he
said that the day had come, but had not yet passed.2 This interpreta-
tion, then, is all the more to be adopted when the extension of time
contains an advantage in itself, as in the case of a truce, which spares
human bloodshed.
3. But the day ' from ' which a certain measure of time is said
to begin will not be included in the measure, for the force of that
preposition is to separate, not to unite.
V. — When a truce begins to be binding
Incidentally I may add this, that a truce, and everything else o£
the kind, is binding on the contracting parties immediately after the
agreement is completed. The subjects on both sides, however, begin
to be bound as soon as the truce has taken the form of a law, and
this requires some sort of publication abroad. As soon as the publica-
tion has been made, it begins to have a binding force on the subjects.
Nevertheless, if the publication has been made in one place only,
that force does not manifest itself at the same moment throughout
the whole area under governmental control, but only after a suffi-
cient time for carrying the news to the different places. Therefore
if in the meantime subjects have done anything contrary to the
truce, while they will not be liable to punishment, the contracting
parties will, nevertheless, be bound to make good the loss.3
VI. — What is lawjul during a truce
1. What is lawful, what is not lawful in a period of truce, may
be understood from the very definition. For all acts of war are
unlawful, whether against persons or against property, that is, what-
1 Baldus, De Statutis, on the word usque ; Bartolus, On Digest, XXXII. iii. 35, and On Digest,
I. ix. 12. Archidiaconus, On Decretum, II. xiii. 1. 1 ; Hieronymus de Monte, in his book De Finibus,
chap. xxiii.
2 Dio Cassius [XLIV. xviii] quotes the saying : ' It is here, but has not yet passed.' Appian
[Civil Wars, II. xxi. 149] : ' The Ides are here, but have not yet passed.'
3 As in the case of Scion in Thucydides, IV [IV. cxxii]. Therefore what Mariana (XXVIII. vii)
relates was done by the Spaniards in Italy cannot be defended.
Meta'
physics,
V.xvii[IV.
xvii].
Dig. L.
xvi. 133.
Suetonius,
Caesar, v
[lxxxi].
Bartolus,
On Dig.,
I. i. 9,
Panorm.,
OnDe-
cretals, I.
ii. 2 (?),
and there-
on, Felinus,
no. 7.
836
On the Law of War and Peace
[Book III
;xl.
xxvii. 9.]
[Digest,
XLIX.xv.
19. § I.]
ever is done by force against the enemy. In a period of truce, in
fact, all such acts are contrary to the law of nations ; it was thus,
according to Livy, that Lucius Aemilius explained the matter in
a speech to his soldiers.
2. Even property of the enemy, which has come into our
hands by chance, will have to be restored, although it had been ours
before. For as regards the legal right, according to which such matters
have to be judged, the property in question has become theirs.
This is what Paul the jurist had in mind when he said that in
a time of truce the right of postliminy does not exist ; for postliminy
requires, as antecedent, the right of capture in war, but this right
does not exist in a truce.
3. On both sides it is lawful to go and to return, but with
such equipment only as does not suggest peril. This was noted by
Servius on the verse of Virgil,1
And with impunity the Latins mingled.
There Servius also relates that when Rome was besieged by Tarquin
a truce was made between Porsenna and the Romans ; and during
the celebration of the Circensian games in the city [595] the
leaders of the enemy entered and contended in the chariot race, and
were crowned as victors.
XXXI
[xxxviii.
10].
Frontinus,
[Stratege-
mata,} II.
xiii [8J.
[XLII.
xlvi. 9.]
VII. — Whether during a truce it is lazvful to retreat and repair walls,
and the like
It is not inconsistent with a truce to withdraw with the army
further inland, as we read in Livy that Philip did. Again, a truce
does not prevent the rebuilding of walls, nor the enrolment of
soldiers, unless some special agreement has been made.2
VIII. — A distinction regarding the seizure of places in time of truce
1. Without doubt it is & violation of a truce to bribe garrisons
of the enemy and seize places which they were holding. Such an
acquisition, in fact, cannot be lawful except by right of war. The
same principle must be applied in case subjects wish to revolt to the
enemy. There is an example in Livy, Book XLII :
The people of Corona and Haliartus, who had a kind of natural predilection for
kings, sent envoys into Macedonia asking for a garrison with which they might be able
to defend themselves against the unrestrained arrogance of the Thebans. To this embassy
the king made answer, that he could not send a garrison to them on account of his truce
with the Roraans.
1 Servius, On the Aeneid, XI [XI. 134].
* As in Paruta, Book IIL
Chap.XXl] On Good Faith during War 837
According to Thucydides, Brasidas in time of truce received [iv.
the city of Mende, which revolted from Athens to Sparta ; but the cxxlll]
excuse is added, that he in turn had charges to make against the
Athenians.
2. It is indeed lawful to take possession of ownerless property,
provided this has been really abandoned, that is, with the Intention
that it should no longer belong to those to whom it had belonged ;
but it is not lawful if the property is merely unguarded, whether
the guard was removed before the truce was made, or afterward.
Continuance of ownership in one renders possession by another
unlawful. And by this rule the quibble of Belisarius against the Procopius,
Goths is refuted ; for under such a pretext he had seized places war°ii
which had been stripped of their garrisons x in time of truce. [vii]!
IX. — Whether^ at the end of the truce, one can return zvho has been
detained by force majeure
1. The question is raised, whether a person, who has been
hindered by force majeure from returning, and is arrested within
the territory of the enemy after the expiration of the truce, has the
right to return.
If we consider the strict law of nations, I do not doubt that this
person is in the same position as one who, although he had come in
time of peace, by his own misfortune is caught among the enemy by
a sudden outbreak of war. We have noted above, that such a person m. ix [4].
remains a captive until the conclusion of peace. Nor is moral justice
opposed to this, since the property and acts of the enemy are liable
for the debt of the state and are taken in payment. The case in
question does not in reality furnish more ground for complaint than
that of so many other innocent persons upon whom the misfortunes
of war fall.
2. In this connexion, moreover, no comparison can be made
with merchandise in a case of confiscation, nor with the illustration £***'»
given by Cicero in the second book On Invention ; he there speaks iv- 15 an'd
of a war vessel as having been driven into port by a storm, which the l6- § 8-
quaestor wished to confiscate according to law. In such cases force ^8Lxxxl1,
majeure frees from the penalty. But in the case of the person forcibly
detained after a truce it is not, properly speaking, a question of
penalty, but of a right, which was suspended during a certain time only.
Nevertheless, there is no doubt that the releasing of such a person
is a more kindly, yes, also a nobler, act.
1 Portus, Centumcellae, Albanum.
838 On the Law of War and Peace [Booklll
X. — Of special agreements in truces and the questions wont to arise
therefrom
Certain acts are unlawful during a truce on account of the special
nature of the agreement ; for example, if a truce has been granted
only for the purpose of buiying the dead, no deviation from that
condition ought to be made. So if a truce has been given to those
who are besieged, with the provision merely that they are not to be
attacked,1 it will not be lawful to admit auxiliary forces and sup-
plies. For, while such a truce is advantageous to the one side, it ought
not to make the situation harder for the other side which granted it.
Sometimes also the agreement is made, that it shall not be lawful
to go back and forth. Sometimes, again, provision is made for persons
and not for things.2 In the latter case, if persons are injured while
property is being defended, the truce will not be violated. For
since it is permissible to defend property, then personal safety must
be referred to the main provisions, and not to what is derived from
the consequences of some one provision.
XI. — When ihe terms of a truce have been violated by the one side, the
other may begin war
If the good faith of the truce has been violated by the one party,
it should not be doubted that the party injured [596] is free to
take up arms even without declaring war. For the main points of
iii. xix. the agreement are implied in the manner of a condition in the agree-
i4]CSS! ment, as I have said a little above.
**• 3«- In the histories you may indeed find examples of those who
have endured wrongs till the end of the truce. But you may also
iivy, ix read that war was declared against the Etruscans and others, because
andxi tne7 nad acted contrary to the truce. This difference is proof that
[x. xxxvii the law is as I say, but that it is at the option of the injured party
to use, or not to use, the right which he has.
XII. — What if a penalty, in case of violation of the truce, has been
added ?
This is established, that if the penalty agreed upon is demanded,
and is paid by the one who has done the wrong, the right to make
war no longer remains. The penalty, in fact, is paid with this in
view, that all else may remain in safety. On the contrary, if war is
begun, it is necessary to consider that, since the choice was given,
the idea of paying the penalty has been abandoned.
| Such as was givcn to the people of Naples by Totila, in Procopius [Golhic War, III. viii].
See Decretals, V. vi. n. There are examples of truces with exception of places in Procopius
and Menander Protector.
ff-3
Chap.XXl] On Good Faith during War 839
XIII. — When the acts of private citizens break the truce
Private acts do not break a truce unless in addition there is
a public act, that is, through command or approval.
Private acts aie understood to be in accordance with public
command or approval if the guilty parties are neither punished nor
surrendered, and if restitution is not made.
XIV. — What interpretation ought to he put on the right of safe-conduct
outside of the period of truce
The right of safe-conduct outside of the time of truce is a kind
of privitege. In its interpretation, therefore, the rules which are
laid down in regard to privileges ought to be followed. This privilege,
however, is neither harmful to a third party nor very burdensome
to the one who grants it. Consequently, within the natural meaning
of the words a loose rather than a strict interpretation ought to be
admitted, and so much the more in case the favour has not been
granted in response to a request, but has been offered voluntarily ;
so much the more, also, if a public advantage of some sort is con-
nected with the business outside of private gain. A strict inter-
pretation, therefore, even according to the meaning of the words,
ought to be rejected, unless otherwise some absurdity would ensue,
or very probable inferences as to intention seem to require it.
On the other hand, a freer interpretation than is afforded by
the natural meaning of the words will be in point, in order that
a like absurdity may be avoided, or because of very cogent inferences.
XV. — Who may be classed under the tenn combatants
From what has been said we draw the inference that the right
of safe-conduct granted to combatants extends not only to inferior
officers but also to officers of the highest rank ; for the natural mean-
ing of the word admits of this interpretation, although there is
another interpretation that is narrower. Similarly a bishop is in-
cluded under the term clergy.
Sailors also, who are serving in fleets, are understood to be com-
batants, and in fact all are who have taken the military oath.
XVI. — How, in this connexion, we are to understand the terms go, come,
and depart
A provision in regard to going is considered to cover also the
return, not from the meaning of the word, but to avoid an absurdity ; Diodorus
for a favour ought not to be void of use. And a safe departure should ^}^'
be understood to hold good until the person has reached a place pXXXiV].
840 On the Law of War and Peace [BookHI
where he is in safety. For this reason the good f aith of Alexander x
was under accusation ; for he had ordered that those to whom he
had granted the right to depart should be killed on the way.
However, a person to whom permission has been granted to depart
cannot also return. Again, a person who has received permission
to come himself will not be able to send another ; and the reverse
of this also holds. Such, in fact, are difTerent matters, and in such
cases reason does not compel us to go beyond the meaning of the
words. Nevertheless, this principle is applicable with the under-
standing that, though an error confers no right, it at any rate relieves
from the penalty, if a penalty formed a part of the agreement.
Also the person who has received permission to come will come
only once, and not a second time unless the allocation of time supplies
a difrerent interpretation.
XVII. — On the extension of this to persons
The son does not follow his father, nor the wife her husband,
otherwise than in accordance with the right of residence. For we
are accustomed to live with our family, but to travel abroad without
it. Nevertheless it will be understood, even if not expressly stated,
that one or two servants are included in the case of a person for
whom it would be unbecoming to travel without such attendance.
Abbas, For he who grants a favour grants that which of necessity follows.
Decrctais, However, in such cases, necessity must be understood in a moral
v. vi. 10. sense.
[597] XVIII. — On the extension of safe-conduct to haggage
Similarly, not all kinds of goods will be included in the safe-
conduct, but only such as are ordinarily taken on a journey.
XIX. — Who are included under the terms attendants and nationality
If the term attendants is used, those ought not to be under-
stood whose case is more provocative of hatred than that of the one
for whom the safe-conduct is arranged. Such are pirates, brigands,
deserters, and fugitives. The designated nationality of the attendants
indicates clearly enough that the right is not extended to others.
1'lutarch, Akxander [lix=p. 698 c] : ' This remained as a blot upon the warlike exploits of the
king, who in other warlike deeds was accustomed to act both justly and in a manner befitting a king.'
You find in Leunclavius, Book VI, a similar deed of Bayezid against the Vidynenses in Servia.
XLIII
XXVI. 2I(
Chap. XXI]
On Good Faith during War
841
XX. — Whether a right of safe-conduct is annulled by the death of the
grantor
Since the right of safe-conduct is derived from the force of
authority, in case of doubt it is not annulled by the death of the
one who granted it. This is in accordance with the rules which
I have stated elsewhere in regard to favours granted by kings and
other rulers.
XXI. — What if a right of safe-conduct has heen granted subject to the
pleasure of the grantor ?
There is usually a discussion regarding a safe-conduct granted
with the restriction, ' so long as I wish'.
The opinion of those is nearer the truth who think that a favour
of this kind continues even if no new act of will occurs ; in case of
doubt the presumption is that that remains in force which is sufficient
for the validity of the right. But the force of the safe-conduct does
not continue when the one who granted it has ceased to be able to
wish it,1 a condition brought about by death. When in fact the
person is removed, the assumption of continuance also will cease,
just as the accident ends with the destruction of the substance.
XXII.— Whether security outside of the territory also is due
Moreover, safe-conduct is due to the person to whom it has
been granted even outside of the territory of the grantor. For it is
granted in derogation of the right of war, which in itself is not con-
flned to a territory, as we have said elsewhere.
XXIII. — The favour of ransoming captives
The ransoming of captives is in large measure an act of favour,
especially among Christians, to whom the divine law especially
commends this kind of compassion. ' The ransoming of captives is
a great and glorious function of justice,' says Lactantius. The
ransoming of captives, especially from a barbarous enemy, is called
by Ambrose a characteristic and supreme generosity. Likewise he
defends his own act and that of the Church, because they had broken
up even the consecrated vessels of the Church 2 in order to redeem
1 Digesi, XXXIX. v. 32, as corrected by the eminent scholar Antoine Favre, substituting voluero
for volueris [Conject. Jur. Civ., Book II. xix].
Add Digest, XIX. ii. 4; see Cardinal Toschi, Practicae Conclusiones, 751, ht. p; Reinkingk,
Book II, class 11, viii. 30.
2 Augustine imitated this act of Ambrose, as Possidius relates [Life of Augustine, xxiv] ; he says
that this was done against the worldliness on the part of some persons. Deogratias, a bishop in the
same Africa. also irnitated the act of Ambrose, as Victor of Utica relates, I [Victor Vitensis, I. viii].
Hincmar, in the Life of Remigius [chap. v], relates that a consecrated vessel, which had belonged
II. xiii
[II. xiv.
n-12].
Canon in
Sext,
I. iii. 5.
842
On the Law of War and Peace
[Book III
Livy,
XXII
[BX 1-2] .
Livv,
XXII
Dxi. I].
[Odes, III.
v. 14-16.]
[Politics,
II. ix;
VII. xiv.]
I. xxv. 3.
captives. ' The ransom of captives is the adornment of sacraments,'
he says, and he uses many other expressions to the same effect.
XXIV. — Whether ransom may be forbidden by law is explained with the
help of a distinction
1. These considerations lead me not to venture to approve
without discrimination the laws which forbid the ransom of captives,
such as existed, we read, among the ancient Romans. Some one said
in the Roman Senate, ' In no state are captives rated more cheaply
than in our own.' The same state is said by Livy to have had the
least consideration for captives, even from early times. There is a
familiar ode of Horace which touches on this subject, in which he
calls the ransoming of captives disgraceful terms and a precedent
dragging ruin with it, a loss added to disgrace.
What Aristotle criticizes in the institutions of Sparta is likewise
ordinarily held to be faulty in those of the Romans. As a matter of
fact all their energies were directed to matters of war, as if on these
alone the safety of the state depended. But if we should only have
regard for considerations of humanity it would in many cases be
better that a right which is sought in war should be lost, than
that a great many men,1 our relatives, in fact, or fellow countrymen,
should be left in the most pitiable condition.
2. Such a law, therefore, does not seem just, unless the need
of such severity is plain, with the purpose in view that greater evils,
or the largest possible number of evils, which are otherwise writh
moral certainty inevitable, may be avoided. In case of such necessity,
since the captives themselves, in accordance with the law of love,
ought to bear their lot with resignation, the injunction not to set
themselves in opposition can be laid upon them and upon others
in accordance with the principles which we have laid down elsewhere
in regard to the surrender of a citizen for the public good.
XXV. — Can the right to a captive be transferred ?
According to our customs, it is true, those who are captured in
war are not slaves. Yet I do not doubt that the right to collect
the price of ransom from [598] a captive can be transferred from
the party who holds the captive to another. For nature allows
a transfer of ownership, even in things which do not have corporeal
existence.
to Remigius, was given to ransom captives from the Norsemen. A similar act of Rimbert, archbishop
of Bremen, is praised by Mark Adam of Bremen in his Ecdesiastical History, chap. xxxii. The sixth
General Council of the Church approved this in a decree inserted in Decretum, II. xii. 2. This ought
to be added to what I have said above, III. v. 2.
1 [600] See Zonaras [XIV. xiii. 77-8] on the very late repentance of the Emperor Mauritius
Chap.XXl] On Good Faith during War 843
XXVI. — A ransom can be owed to several by one person
Further, tlie same person can owe a ransom to more than one
person if he has been let go by the first and captured by another
before the flrst ransom has been paid. Such, in fact, are different
debts, arising from different causes.
XXVII. — Whether an agreement can be annulled on the ground that the
wealth of the captive was unknown
An agreement in regard to the amount of ransom cannot be
annulled on the ground that the captive is understood to be richer
than was believed. By the strict law of nations, which we are in-
vestigating, no one is compelled to make good what he has promised
in a contract at less than a fair price, if there has been no deception.
This can be understood from the explanations previously made con-
cerning contracts.
XXVIII. — What goods of the captive belong to the captor
From what we have said, that captives are not our slaves, it
follows that there is no room for the complete acquisition which, as
we have said elsewhere, is the essential condition of ownership over
the person. No other property, therefore, wriH be gained by the
captor than what he has actually taken.
In consequence, if the captive has something concealed on his
person, it will not be acquired, since it has not been taken. Just so
Paul the jurist made answer, in opposition to Brutus and Manlius,
that a man, who has taken possession of a farm, has not taken into his
possession a treasure which he does not know is on the farm ; for
a person cannot possess what he does not know of. The conclusion
from this is that property concealed on the person of a captive can
be used in paying the price of the ransom, since ownership has in
effect been retained.
XXIX. — Whether the heir owes the price of ransom is explained, with
the help of a distinction
1. This question is also commonly raised, whether a ransom
agreed upon, but not paid before death, is due from the heir.
The answer seems to me void of difficulty. The ransom is not
due if the captive died in prison. There was, in fact, a condition
attached to the promise, that the captive should be set free ; but
a dead man is not set free. On the contrary, if the captive died
when at liberty, the ransom is due ; for he had already gained that
in return for which the ransom had been promised.
844 On the Law of War and Peace [Booklll
2. I admit that obviously the agreement can be made also with
difTerent conditions, so that the ransom may be unreservedly due
from the very moment of the contract, the captive being retained
no longer as a prisoner of war, but as security for himself. On the
contrary, the contract can be so drawn up that the payment of the
price shall only be made if on the appointed day the captive is alive
and free. But these conditions, as being less natural, are not to be
assumed without clear proofs.
XXX. — Whether a person, who has been released in order to free another,
ought to return if the other has died
Again, the question is proposed for discussion, whether a return
to prison is obligatory for a man who has been released under the
agreement that he should cause another to be freed, where the other
has anticipated release by dying.
11. xi.22 I have said elsewhere that the act of a third party, if fairly
nLxx.16' promised, is satisfactorily performed if nothing on the part of the
promisor is omitted, but that in the case of burdensome promises
the promisor is obligated only to an equivalent amount. So, in the
question under discussion, the one who has been released will not be
bound to restore himself to custody ; for this was not the agreement,
and the presumption in favour of liberty does not allow a tacit agree-
ment to be understood. But the person who has been released ought
not to get his freedom as clear profit ; he will pay the estimated
value of what he cannot furnish.1 For this is more in accord with
Dig. xix. natural simplicity than what the interpreters of the Roman law set
Dig. xii. forth in an action according to prescribed formulas and on a formal
iv. 16. claim for restitution of a thing given for a cause, when the cause did
not follow.
1 Paul Balioni did not do this, when released on the condition that he restore to liberty Carvajal,
since Carvajal died before being set free. On this account he is criticized by Mariana, Book XXX
[XXX. xxi]. But Paruta, Book II, relates the circumstances of the deed somewhat differently.
CHAPTER XXII
ON THE GOOD FAITH OF SUBORDINATE POWERS IN WAR
I. — The kinds of military leaders
As one form of public agreement, Ulpian reckons this : ' When- Dig. n.
ever the leaders of the war make agreements with each other.' xiv* 5>
I have said that after considering the good faith pledged by the
highest authorities I must treat of that which subordinate officials
pledge to one another, or to others. Either the subordinate officials
are next to the highest authority, such as have properly been called
generals, to whom this expression of Livy must be applied, ' And iv [xx. 6].
we recognize as a general only the officer under whose auspices the
war is waged ' ; or they are officers of lower rank, whom Caesar Com-
distinguishes as follows : ' A lieutenant-general (legatus) has one set julcivu
of duties, a commander-in-chief (imperator) another. The one ought War, iii.
to carry out orders ; the other, to deliberate freely on the conduct ll* 4i*
of the whole campaign.'
II. — Hozv far an agreement made by military leaders is binding on the
supreme authority
In dealing with the promises of military leaders the subject
must be viewed under two aspects ; for the question is raised whether
such promises impose a binding obligation on the supreme authority,
or only on the leaders themselves.
The first point should be settled in accordance with the prin-
ciple which I have elsewhere stated,1 that an obligation is imposed x1.zi.z2.
on us also by the person whom we have chosen as agent to execute
our wishes, whether our wishes have been stated in express terms or
are inferred from the nature of the responsibility. For the one who
grants a power grants the means necessary for the exercise of that
power, so far as he possesses them ; and this ought to be understood
morally in matters pertaining to morals. In two ways, therefore,
subordinate authorities will be able to bind the supreme authority
by their actions, either by doing that which is thought on probable
grounds to lie within their field of duty, or even outside their field
of duty, in accordance with a special responsibility, known to the
public, or to those whose interest in the matter is at stake.
1 See Camden [p. 630], on the year 1594, relative to the sentence of Count Miranda in the case
of Hawkins.
845
846 On the Law of War and Peace [Booklll
III. — How far such an agreement fumishes occasion for an obligation
There are also other ways in which the supreme authority is
obligated by a previous act of its agents, but not in such a way that
this act should be, properly speaking, a cause, but rather an occasion,
of obligation. This may happen in two ways, either by consent, or
by reason of the act itself. Consent is revealed by ratification, not
only express but also implied, that is, when the supreme authority
knew what had been done and permitted the accomplishment of the
acts, which cannot with probability be referred to another cause.
11. iv. 5 \Ye have explained elsewhere how this matter proceeds.
andxv.17. -gy reason 0f tne thing itself states are bound to this extent, that
they should not become richer through another's loss, that [601]
is, that they should either carry out the agreement, from which they
wish to acquire gain, or renounce the gain. In regard to this prin-
11. x. 2. ciple of equity, also, I have spoken elsewhere. And to this extent,
and not beyond, can we accept the maxim, that whatever has been
done to our advantage is valid. On the contrary those cannot be
acquitted of injustice who disapprove of the agreement and yet
retain what they would not have had without the agreement. Such
ix. xvi a case arose when, as Valerius Maximus relates, the Roman senate
[ix. vi. was unaD|e to approve 0f the act of Gnaeus Domitius, and yet was
not willing to disavow it. Many such instances occur in history.
IV. — Whaty if anything, has been done contrary to instructions ? Herein
distinctions are presented
11. ». 12 1. Also we must repeat what has been said above, that whoever
has appointed an agent is bound, even if the agent, while yet within
the limits of his public function, has acted contrary to secret in-
structions.
This rule of equity was rightly followed by the Roman praetor
in an action relating to agents, that not everything done by an agent
is, in fact, binding on the one who appointed him, but only that
which, within the limits of his responsibility, was done in the interest
of the principal. If now public notice has been given, that agreements
should not be made with him, then he will not be considered as an
p%g. xiv. agent. If, however, the notice has been given, but is not generally
il.xif11' known, the one who appointed the agent is bound.
H 2, 3. 4. Also the conditions of the appointment must be observed. For
if any one has wished that an agreement be made under a certain
condition, or with the intervention of a certain person, it will be most
fair that the conditions under which the agent received his appoint-
ment shall be observed.
Chap.XXll] On Good Faith of Subordinate Powers 847
2. The consequence of this is, that some kings or peoples are
put under greater obligation by the agreements of their military
leaders, others under less, in case their laws and customs are adequately
known. But if there is doubt on these points we must follow the
line of inference, in such a way as to understand that that is conceded
without which there can be no proper discharge of responsibility on
the part of the official.
3. If a lesser official has exceeded the limit of his instructions,
in case he is unable to make good what he has promised, he will
himself be liable for the equivalent of the loss, unless such recovery
is precluded by some law sufficiently well known. But if in addition
there is deceit, that is, if the official pretended to have greater power
than he did have, he will then both be liable for the loss caused by
his fault and also, on account of his criminal conduct, he will be
subject to a penalty commensurate with the crime. In the former
case his property is liable, and, if that is not sufficient, also his work,
or the liberty of his person. In the second case his person, or his
property, or both are liable, according to the magnitude of the
crime.
Moreover, what we have said regarding deceit will be in point,
even if any one has declared beforehand that he is unwilling to make
himself liable, because the debt due both for the loss occasioned and
as a just penalty is associated with the offence by a natural and not
by a voluntary connexion.
V. — Whether in such a case the other party will be under obligation
But since either the supreme authority, or its agent, is always
bound, this also is certain, that the other party to the agreement is
under obligation, and it cannot be said that the agreement is one-
sided.
We are done with the relation of lesser officials to their superiors.
VI. — What generals or magistrates are able to do with regard to those
of lower rank, or on behalf of them
Let us see also what higher officials are able to do with regard
to those of lower rank.
We ought not, I think, to doubt that a general may place
a binding obligation on his soldiers, or magistrates on their fellow
townsmen, within the limits of those powers which they are accus-
tomed to exercise ; beyond those limits, consent would be necessary.
On the other hand, a compact of a commander or of a magistrate Akiati,
will, in general, be advantageous to those of lower rank in respect v^jfj.
to matters merely expedient ; such arrangements, in fact, are suffi-
1569.27 3 l
848
On the Law of War and Peace
[Book III
II. X. IX
[II.xi.I4].
ciently understood as in their power. In respect to conditions which
have a burden attached, the obligation is absolute within those rights
which they are accustomed to exercise, but, beyond those, only if
accepted.
These provisions are in accord with the principles which we
have elsewhere discussed, growing out of the law of nature regarding
a stipulation in behalf of a third party. The general statements
will now be made clearer by the presentation of particular instances.
Tlutarch,
Agesilaus,
x=p. 601
B.]
Jugurtha
[xxxix. 3].
XXXVII
[xix. 2].
[II. XV.
16-27].
[Livy.IX.
ix. 7.]
VIL — Generals do not have the pozver to make peace
It does not fall within the province of the general to conduct
negotiations with regard to the causes or the consequences of a
war;1 [602] the terminating of war is, in fact, not a part of the
waging of it. Even though the general has been placed in command
with absolute power, that must be understood to apply only to the
conduct of the war. The reply of Agesilaus to the Persians was :
1 The right of decision regarding peace belongs to the state.' Sallust
says that the senate rescinded the peace which Aulus Albinus had
made with king Jugurtha, because he had made it without the authority
of the senate.
Also we find in Livy : ' How will that peace be valid which we
shall have concluded without the authority of the senate, without
the decree of the Roman people ? ' For that reason the Caudine
agreement and the agreement in regard to Numantia did not bind
the Roman people, as I have explained elsewhere. And up to this
point the statement of Posthumius is correct : ' If there is anything
which can be made a binding obligation on the people, all things
can ' ; that is to say, things which do not belong to the conduct of
warfare. That this is the meaning is shown by the preceding state-
ments concerning surrender, concerning an agreement to abandon or
to burn a city, and concerning a change in the form of government.
XXIV
[xix].
VIII. — Whether generals may make a truce ; herein a distinction
Not only generals in command but also officers of lower rank
have the power to make a truce,2 but only with those against whom
they are fighting, or whom they are holding in a state of siege. This
applies only to themselves and to their troops ; for other officers of
equal rank are not bound by such a truce, as is clear from the story
of Fabius and Marcellus in Livy.
1 Bclisarius said to the Goths [Procopius, Gothic War, II. vi = p. 403 a] : 'For I do not have the
right to manage the affairs of the Emperor.'
• See Paruta, Book V.
[xiv. 10] .
Chap. XXII] On Good Faith of Subordinate Powers 849
IX. — What security of persons, and what property, can be given by
generals
1. Likewise it is not within the province of generals to dispose
of men, dominions, and territories taken in war.
In accordance with this law Syria was taken away from Tigranes, justin,
although Lucullus had given it to him. In regard to Sophonisba, XLpi.3].
who had been captured in war, Scipio said that the judgement and Livy,
will of the senate and the Roman people would decide ; and so j**x
freedom could not be given to her by Masinissa, the general by
whom she had been captured. Over other matters, which fall under
the head of booty, we see that some rights are granted to commanders, castrensis,
not so much by reason of the strength of their authority as by the Deiust.
customs of each people. But in regard to that subject we have said i.l""'
enough previously. m.vi.15.
2. However, it is quite within the power of generals to grant
things which have not yet been taken, because in many cases towns
and men surrender in war on the condition of preserving their lives,
or of keeping also their liberty or even their property. In such
matters circumstances generally do not afford opportunity to request
the decision of the sovereign authority.
For a like reason this right ought to be granted also to com-
manders not of the highest rank, within the limits of the matters
entrusted to their administration. When Hannibal was far away,
Maharbal had promised to certain Romans, who had escaped from
the battle near Trasimenus, not only their lives — ' their safety ', as
Polybius too concisely remarks — but also, if they should have given pn.
up their weapons, the privilege of departing with one suit of clothes ****&.
each. But Hannibal detained them, alleging that ' it was not in the
power of Maharbal, without consulting him, to give to those who
surrendered his pledge that he would leave them uninjured and
unharmed \1 The judgement of Livy on this act is, ' The pledge [xxn.
was kept by Hannibal with Punic faith.' vl- X3*l
3. Consequently, in the case of Rabirius we ought to consider
Cicero as a lawyer and not as a judge. He maintains that Rabirius [ForRa-
had rightly killed Saturninus, whom the consul Gaius Marius had b2"™s' x'
persuaded to leave the Capitol by giving a pledge to him. ' How
could a pledge be given ', says Cicero, ' without a decree of the
senate ? ' And so he treats the matter as if that pledge bound Marius
only. But Gaius Marius had received authority by a decree of the
senate to see to it that the sovereignty and majesty of the Roman
people should be preserved. In this power, which according to
1 No more plausible was the evasion used in a similar case by Bayezid against the Servians of
Crattovo, as Leunclavius relates; Book VI.
3 L 2
850 On the Law of War and Peace [Booklll
Roman custom was the highest,1 who would deny that the right of
granting immunity was included, if in that way every peril might be
warded ofl from the state ?
X. — Such agreements should be interpreted narrozvly ; and zvhy
For the rest, in dealing with the agreements made by generals,
because these are concerned with a matter outside their field, the
interpretation must be restricted so far as the nature of the agree-
ment allows, lest indeed [603] by their act either the sovereign
power be obligated to a greater degree than it wishes, or they them-
selves suffer injury in the discharge of their duty.
XI. — Hozv a surrender accepted by a general is to be interpreted
In consequence, one who is received in unconditional surrender
by a general is considered to have been received on such terms that
the decision in regard to him belongs to the victorious people or
[Appian, king. There is an example of this in the case of Genthius, king of
wZ?" IUyria, and in that of Perseus, king of Macedonia ; the former sur-
ii. 9]' rendered to Anicius, the latter to Paulus.
[Livy,
XLV. vi.
10.1 XII. — Hozv to understand the proviso, l if the king or the people has
approved '
Thus the added proviso, ' Let this be valid, in case the Roman
people shall have ratified it ', which is often found in treaty com-
pacts, will have the effect that, if the ratification does not follow,
the general will himself in no respect be bound, unless in some way
he has thereby been made richer.
XIII. — Hozv to understand the promise io surrender a tozvn
iivy, Also those who have promised to surrender a town can allow
^ln' *ke garrison to withdraw, as we read that the Locrians did.
1 See Sallust, Catilinarian War [xxix. 3]. Not unlike this Ciceronian sophistry is that of
Gonsalvo against the Duke of Valentinois; Guicciardini, Book VI [p. 339, edit. Genev., 1645].
CHAPTER XXIII
ON GOOD FAITH OF PRIVATE PERSONS IN WAR
I. — Refutation of the opinion, which holds that private persons are not
bound hy a pledge given to the enemy
Sufficiently well known is this statement of Cicero : ' Also [On
if, under the pressure of circumstances, individuals have promised Jn.^g]'
anything to the enemy, faith must be kept in that very matter.'
Whether the individuals are combatants or civilians — it matters not
as regards keeping faith.
It is strange that legal authorities have been found who would Bartoius,
teach that the obligation was binding when an agreement was made ^^v'' •
publicly with the enemy, but that agreements made by private zasius,'
persons were not binding in like manner. For since private citizens **%£#
have private rights, which they can place under obligation, and Eck.
enemies [604] are capable of acquiring right, what can stand in m. xix. 2.
the way of the obligation ? Add that, unless this rule is established,
opportunity is given for slaughter, an impediment is set to liberty.
For captives in many cases will not be able to guard against the
former, or to obtain the latter, if the good faith of private persons
has been done away with.
II. — It is shown that private persons are bound even to a pirate and
a brigand ; and to what extent
Still further, not only is a pledge, which has been given to an
enemy, recognized by the law of nations, but also a pledge to a brigand
or to a pirate, just as we have said above in regard to public faith. 11. Xi. 7
There is this difTerence, that if an unjust fear inspired by the other 2^"L
has induced the promise the promisor can demand restitution, or
if the other party is unwilling to make restitution he can take it ;
such a procedure has no place in case of a fear arising from a public oidradus,
war, according to the law of nations. covar-™'
If an oath also has been added to the promise, then what has ruvius,
been promised will have to be made good by the promisor, if he
wishes to avoid the crime of perjury. If such a perjury has been n.iii.V
committed against a public enemy, men are accustomed to punish
it ; but if against brigands or pirates, it is overlooked, because of the
hatred of those whose interest is at stake.
III. — No exception is here madefor a minor
Also in this aspect of the good faith of private persons we shall
make no exception for a minor who has sufficient intelligence to
De Matrir
monio,
no. 21.
852 On the Law of War and Peace [Booklll
understand his act. For the privileges which favour minors arise
from municipal law, but we are treating of the law of nations.
IV — Wheiher an error gives release
11. xi. 6. Also as regards an error, we have said elsewhere that it gives
the right to withdraw from an agreement only if that which was
erroneously believed had the force of a condition in the mind of the
promisor.
V. — Answer to the objection raised from ihe point of view of public
advantage
1. It is more difficult to decide how far the power of individuals
may extend in making an agreement. That public property cannot
be alienated by an individual is well established. For if this right
[iirj xxii. is not permitted even to generals in war, as I have just shown, still
7- less will it be permitted to private citizens. But in regard to their
own acts and property the question can be raised because it is evident
that these also cannot be put at the service of the enemy without
some degree of damage. For this reason such agreements on the part
of citizens may seem unlawful on account of the state's right of
eminent domain, and on the part of enrolled soldiers on account of
their military oath.
2. It must be understood, however, that agreements which
avoid a greater or more certain evil ought to be considered advan-
tageous rather than harmful to the public interest, because a lesser
Punk evil assumes the appearance of an advantage. ' Of evils one ought
[xit[*94]. t0 cnoose the lesser ', a certain speaker says in Appian. In fact neither
an act of sincere good faith, by which one does not yield absolute
power over himself and his possessions, nor the public advantage
without the authority of law, can render void and deprive of all
legal effect that which has been done, even if it is granted that this
was done contrary to duty.
3. A law may indeed deprive either permanent or temporary
subjects of such power. But the law does not always do this, because
it spares the citizens ; and it cannot do this in all cases, for the reason
7, 21 that human laws, as I have said elsewhere, have the power of imposing
L^3]V; ii. °bligation only if they have been passed in a humane manner, and
xiv. 12. not if they impose a burden which is plainly inconsistent with reason
and nature. And so special ordinances and orders, which openly
claim some such right, ought not to be considered as laws. Moreover,
general laws ought to be received with so benevolent an interpreta-
tion as to exclude misfortunes arising from extreme necessity.
Chap. XXIII] On Good Faith of Private Persons
853
4. But if the act of the private person, which had been for-
bidden by law or by an order and prevented from becoming valid,
could rightly have been forbidden, then the act of the individual
would be void. Nevertheless he could be punished on this account,
because he promised what was not within his right ; and especially,
if he promised it on oath.
[605] * VI. — The previous statements are applied to a pledge given of
return to prison
The promise of a captive to return to prison is properly allow-
able ; for it does not render the condition of the captive worse.
Therefore Marcus Atilius Regulus did not merely act nobly, as some
think, but also as his duty required. Cicero says : ' It was the duty
of Regulus not to disturb by perjury the conditions and agreements
of war.' And no obstacle to his return was presented by this con-
sideration :
But yet he knew what tortures
The barbarous executioner was making ready ;
for he had known when he made the promise that this might happen.
Likewise, also, of the ten captives, as Gellius tells the story from
ancient authors, ' Eight replied that they had no right to postliminy,
since they were bound by oath.' 2
On Duties,
III [xxix.
108].
Horace
[Odes, III.
v. 49-50].
VII. xviii
[VI. xviii.
q.
VII. — Tbe pledge not to return to a certain place ; the pledge not to
serve as a soldier
1. It is also customary for prisoners to promise not to return
to a certain place, and not to take up arms against the one who had
them in his power. An example of the former kind of pledge is found
in Thucydides, where the people of Ithome promise the Lacedae- [Ldtt.]
monians that they will leave the Peloponnesus never to return.
Instances of the second kind of pledge are now frequent.^ An
ancient example is to be found in Polybius, where the Numidians
are released by Hamilcar on the condition that none of them will
bear hostile arms against the Carthaginians. Procopius 3 in the
Gothic War records a similar agreement.
2. Some writers declare such an agreement void, because it is
contrary to the duty due to the country of allegiance. But whatever
is contrary to duty is not at once also void, as I have said just aboye
and elsewhere. Then, too, it is not contrary to duty to obtain
1 [In the 1646 edition, sections 6, 7, 8, 9, 10 and n are numbered 7, 8, 9, 10, n and 12, and
section 12 is run in in the last of those here enumerated.]
2 That is, lacking civil rights, as Horace [Odes, III. v. 42] says of Regulus.
3 Gothic War, II [II. xiv], about the Herulians.
I [lxxviii.
14].
III [xxxvi
= P- 552
c].
854 On the Law of War and Peace [Booklll
liberty for oneself by promising what is already in the hands of the
enemy. The cause of one's countiy is, in fact, none the worse thereby,
since he who has been captured must be considered as having already
perished, unless he is set free.
VIII. — The pledge not to run azvay
Some prisoners also promise not to run away. Contrary to the
opinion of certain writers, such a pledge is binding on them, even
though they made the promise when in chains. For in this way
either lives are ordinarily saved, or milder captivity secured. If,
however, the prisoner shall be put in chains afterward, then he will
be released from the promise, if it was made on the condition that he
should not be put in chains.
IX. — One who has been captured cannot surrender to another
Rather foolishly the question is raised, whether one who has
been captured can surrender to another.
It is quite certain that no one by his own agreement can take
away a right gained by another. But the captor has gained a right,
either by the law of war alone, or partly by the law of war and partly
111. vi. by the consent of him who is waging the war, as I have explained
23 *' above.
X. — Whetber private persons should be compelled by their rulers to carry
out zvhat they have promised
Regarding the effect of agreements an important question is,
whether private persons, in case they are negligent, ought to be com-
pelled by their rulers to fulfil their promises.
It is nearer the truth to say that they should be compelled to
do so only in regular warfare, on account of the law of nations by
which those who wage war are bound to render justice to each other,
even in regard to the acts of individuals ; a case in point would be
if envoys of the enemy should be injured by private citizens.
vin. \ Thus, according to the statement of Gellius, Cornelius Nepos
r^- xvm- wrote that many in the senate voted l that those of the ten captives
who were unwilling to return should be put under guard and taken
back to Hannibal.
1 In likc manner already earlier the senate had obliged those to return whom Pyrrhus had released
conditionally ; Appian, Selections on Embassies, vi [=Samnite Hislory, x. 5].
Chap. XXIII] On Good Faith of Private Persons
855
XI. — What kind of an interpretation ought to be applied in agreements
of this sort
In the matter of interpretation, the mles should be observed
which have already been mentioned several times, to wit : that we
should not depart from the natural meanings of the words except in
order to avoid an absurdity, or from some quite satisfactory surmise
as to the intention ; and that in case of doubt we should be more
inclined to interpret the words against the one who made the con-
dition.
II. xvi. 2
III. xx.
26.
XII. — In zvhat way we are to interpret the terms life, clothing, and the
arrival of aid
One who has made an agreement regarding his life does not
have the right to liberty also.
Arms are not included under the term clothing ; for these are
different things.
Aid is rightly said to have arrived if it is in [606] sight,
although it is doing nothing ; for its very presence has an influence.
XIII. — Who ought to be said to have returned to the enemy
One who has returned secretly, so as to depart immediately,
will not be said to have returned to the enemy. For returning ought
to be understood as coming a second time under the power of the
enemy.
Cicero held the opposite interpretation to be disingenuous and
foolishly crafty, since it involves deceit and perjury. Gellius called
it fraudulent cleverness, branded with disgrace by the censor ; and
he characterizes those who had practised it as odious and detestable.
On Duties,
III [xxxii.
113].
VIII. xix.
[VI. xviii.
10].
XIV. — What are adequate reinforcements in the case of a surrender
made conditionally ?
In the case of an agreement to surrender,1 which shall not hold
if adequate reinforcements have arrived, the reinforcements ought
to be understood to be such as will cause the danger to cease.
1 There are four examples of a treaty of this kind in the Gothic War of Procopius, III [III. vii,
xii, xxx, xxxvii]. There is another in Agathias, I [I. xii=p. 23 a], concerning Luca. Another concerning
a castle in Corsica is in Bizarri, History ofGenoa, Book X ; others in Book XVIII and in the war against
the Moors. Kromer, Book XI, also has a similar instance.
856 On the Law of War and Peace [Booklll
XV. — Whatever pertains to the execution of an agreement does not con-
stitute a condition
This also must be noted, that if any covenant has been made
regarding the method of execution this adds no condition to the
agreement. The case is as if they said that payment is to be made
in a certain place, which afterward changed ownership.
XVI. — Regarding hostages given for such agreements
In regard to hostages the position must be maintained which
iii. xx. we stated above, that in most cases they are merely accessory to the
58, principal act. Nevertheless the agreement can be so made that the
obligation shall present an alternative, that is, either that something
shall be done, or that the hostage shall be retained. But in case of
doubt we must maintain what is most natural, that is, that the
hostages shall be believed to be only accessory.
CHAPTER XXIV
ON IMPLIED GOOD FAITH
I. — How goodfaith may be tacitly interposed
It was well said by Javolenus, that certain things are agreed to
by silence ; and this is found to be the case in public agreements,
in private agreements, and in mixed agreements.
The reason is that consent, no matter how indicated and accepted,
has the power of transferring a right. But there are also other signs
of consent besides spoken and written words, as we have already
more than once indicated. And certain signs by nature form a part
of the act.
Digesi,
XIX. ii.
5i.
II.iv.4;
III. ii. 8
[III. i. 8].
II. — An example, in the case of a person who desires to be received under
the protection of a people or a king
An example may be found in the case of the person who comes
either from the enemy or from a foreign country and entrusts him-
self to the good faith of another people or king. For there ought to
be no doubt that such a person tacitly binds himself to do nothing
against that government under which he seeks protection.
[607] Consequently we ought not to follow those who say that
the act of Zopyrus was free from blame ; for his f aithfulness toward
his king did not excuse his treachery toward those to whom he had
fled. The same should be said of Sextus, the son of Tarquin, who
fled to Gabii. About Sinon Virgil says :
Hear now the plots of Greeks, and from the crime of one
Learn to know all Greeks.
III. — An example, in the case of one who asks or grants a parley
Likewise the person who asks or grants a parley tacitly promises l
that it will be without hurt to those who take part in it.
Livy declares that the law of nations is violated by doing harm
to the enemy under the pretence of a parley ; he adds, that the
good faith of a parley was treacherously violated (for the reading
' through faith ' (perjidem) in that passage is faulty), because Gnaeus
Domitius placed in chains Bituitus, king of the Averni, after Domitius
had invited him to a pretended conference and had received him
1 [608] Deservedly Agathias, Book II [II. xiv=p. 50 c], censures the Hun Ragnans, because
he tried to kill Narses with a spear as Narses was going away frorn a conference.
857
[Herodo-
tus, III.
cliv.]
[Justin,
I. x. 15.]
Livy,
I[liii.5].
Aeneid, II
[65-6].
858
On the Law of War and Peace
[Book III
X. vi [IX.
vi. 3].
[VIII.
xxiii. 3.]
in hospitality. This judgement is passed on Domitius by Valerius
Maximus : * His excessive desire for fame made him treacherous.'
Wherefore one must wonder why the writer of the eighth book
of Caesar's Gallic War, whether Hirtius or Oppius, in referring to
a similar deed of Titus Labienus adds, ' He judged that the faith-
lessness of this man ', that is, Commius, ' could be suppressed without
any act of treachery,' unless the explanation is that this is the opinion
of Labienus rather than of the writer.
Livv,
XLII
[xlvii.xff.]
III.ii.6ff.
[III. i.
6ff.]
Livy,
[xvii] and
XXX
[iv].
I. v [17].
IV. — Nevertheless he who asks or grants a parley is not hindered from
promoting his own interests, provided that he does not harm the other
party to the conference
But that implied consent must not be extended beyond what
I have said. For, provided that the parties to the conference suffer
no harm, it is not treacherous, but reckoned among honourable
artifices, to divert the enemy from warlike plans by the pretext of
a parley, and in the meantime to promote one's own advantage.
Those, therefore, who maintained that King Perseus was deceived
by the hope of peace, took into consideration not so much right
and good faith as highmindedness and warlike glory ; and this can
be well understood from what we have said concerning stratagems
in war. Of the same general character was the ruse by which Hasdrubal
saved his army from the Ausetanian defiles, and that by which Scipio
Africanus the Elder learned the location of the camp of Syphax ;
both of these instances are related by Livy. Their example was
followed by Lucius Sulla l also in the Social War, near Esernia, as
we read in Frontinus.
V. — Of mute signs which by custom have some meaning
There are also certain mute signs which have a significance
arising from custom. Such were in ancient times the use of fillets
and olive branches ; among the Macedonians the raising of spears,
among the Romans the placing of shields over the heads,2 all signs
of a suppliant surrender,3 which in consequence imposed the obliga-
tion to lay down arms. But whether one who indicates that he
1 Also the Dictator Caesar against the Tencteri and Usipetes ; Appian, Selections on Embassies, xvi
[= Gallic Hislory, xviii].
* Appian, Civil Wars, II [vi. 42].
* Arnong the Persians the hands were clasped behind the back ; Ammianus Marcellinus, Book
XVIII [XVJII. viii. 4] ; see also the notes of Lindenbrog on this passage. The same Ammianus,
Book XXVI [XXVI. ix. 7], notes that the shields and standards were reversed among the Romans.
Latinus Pacatus, Pamgyric [xxxvi]. says that they lowered the flags.
The ancient Germans and others, f ollowing their example, offered grass, as Pliny states, Book XXII
[XXII. iv. 8]. Servius, On the Aemid, I [I. 487], says that those who surrender themselves as con-
quered lay down their arms as suppliants.
Chap.XXlV] On Implied Good Faith 859
accepts such a surrender is under obligation, and how far, should
be inferred from what I have said above. m. iv. 12
At the present time white flags * are the implied sign of a request and xu I5'
for a parley ; they will, therefore, be no less binding than if the
parley had been requested by word of mouth.
VI. — On the implied approval of a treaty compact
How far a treaty compact made by generals ought to be con-
sidered as impliedly approved by the people or king, I have already 11. xv. 17
stated above, to wit : when both the action was known and some- ££* "L
thing was done or not done for which no other cause could be assigned
except the wish to ratify the treaty.
VII. — When a punishment is impliedly remitted
The remission of a penalty 2 cannot be inferred from the sole
fact of its being disregarded. There is need, besides, of some such
act as either in itself may show friendship, as a treaty of friendship,
or such as will express so high an opinion of the virtue of the party
subject to punishment that his previous deeds ought deservedly to
be pardoned ; whether that opinion is expressed in words, or through
acts, which customarily have such significance.
1 Among the northern peoples the lighting of a fire was a sign that a parley was requested, as
Johan Magnus and others state. Pliny, in Book XV. xxx [XV. xxx. 133], says of the laurel : ' It
is itself the bringer of peace, so that, when it is presented, it becomes also a sign of cessation of hostilities
between armed foes.'
2 Polybius, in a passage preserved in the Selections on Embassies, xxii [= XXIII. vi], discusses
the question whether punishment is remitted to those who committed the act at the same time that
it is remitted to the instigators. I do not think that it is, for individuals are answerable for their own
misdeeds.
CHAPTER XXV
CONCLUSION, WITH ADMONITIONS ON BEHALF OF GOOD FAITH AND
PEACE
On Dutus,
III [II.
xxiv. 84].
Rfutoric,
I. xv [22].
For
Quintus
Roscius
[vi. 16].
LetUrs,
Ixxxviii
[29].
I. — Admonitions to preserve peace
At this point I think that I can bring my work to an end, not
because all has been said that could be said, but because sufficient
has been said to lay the foundations. Whoever may wish to build
on these foundations a more imposing structure will not only find
me free from envy, but will have my sincere gratitude.
Yet before I dismiss the reader I shall add a few admonitions
which may be of value in war, and after war, for the preservation
of good faith and of peace ; just as in treating of the commencement
of war I added certain admonitions regarding the avoidance of wars,
so far as this can be accomplished.
And good faith should be preserved, not only for other reasons
but also in order that the hope of peace may not be done away with.
For not only is every state sustained by good faith, as Cicero declares,
but also that greater society of states. Aristotle truly says that, if
good faith has been taken away, ' all intercourse among men ceases
to exist'.
Rightly the same Cicero says that ' it is an impious act to destroy
the good faith which holds life together '. To use Seneca's phrase,
it is ' the most exalted good of the human heart '. And this good
faith the supreme rulers of men ought so much the more earnestly
than others to maintain as they violate it with greater impunity ;
[609] if good faith shall be done away with, they will be like wild
beasts,1 whose violence all men fear. Justice, it is true, in its other
aspects often contains elements of obscurity ; but the bond of good
faith is in itself plain to see, nay more, it is brought into use to so
great an extent that it removes all obscurity from business transac-
tions.
It is, then, all the more the duty of kings to cherish good faith
scrupulously, first for conscience's sake, and then also for the sake of
1 According to Procopius, Persian War, II [II. x], the ambassadors of Justinian thus address
Chosroes :
Unless, 0 king, this address were being made to you in person, we should never have believed
that Chosroes, son of Cabades, would have entered Roman territory in arms af ter first scorning the
swora oaths, which are believed to be the highest and strongest pledge of truth and good faith among
men ; and besides, after breaking the treaty, in which rests the only hope left for those who are
not living in safety on account of the evils of war.
What else should we say that this is, than to exchange the life of men for the life of wild beasts ?
For when treaties have been done away with it will follow that all peoples will wage unending
wan with one another. But unending wars have the eff ect, that they keep men continuously estranged
from their own nature.
860
Chap. XXV]
Conclusion
861
the reputation by which the authority of the royal power is sup-
ported. Therefore let them not doubt that those who instil in them
the arts of deception are doing the very thing which they teach.
For that teaching cannot long prosper which makes a man anti-
social with his kind and also hateful in the sight of God.
II. — In war peace should always be kept in view
Again, during the entire period of administration of a war the
soul cannot be kept serene and trusting in God unless it is always
looking forward to peace. Sallust most truly said, ' The wise wage
war for the sake of peace.' With this the opinion of Augustine
agrees : ' Peace is not sought that war may be followed, but war is
waged that peace may be secured.' Aristotle himself more than once
condemns those nations which made warlike pursuits, as it were,
their end and aim. Violence is characteristic of wild beasts, and
violence is most manifest in war ; wherefore the more diligently
eflort should be put forth that it be tempered with humanity, lest
by imitating wild beasts too much we forget to be human.
To Caesar
On Pub.
Admin.
[I. vi. 2].
Letters, i
[clxxxix.
6],
To
Boniface.
Politics,
VII. ii [9]
and xiv
[11].
III. — And peace should also be accepted even at a loss, especially by
Christians
If, then, it is possible to have peace with sufficient safety, it is
well established by condonation of offences, damages, and expenses ;
this holds especially among Christians, on whom the Lord has bestowed
His peace. And His best interpreter wishes us, so far as it is possible
and within our power, to seek peace with all men. It is characteristic
of a good man, as we read in Sallust, to be unwilling to begin war,
not gladly to pursue it to the bitter end.
IV. — The consideration stated is useful to the conquered
This one consideration ought to be sufficient. However, human
advantage also often draws in the same direction, first, those who
are weaker, because a long contest with a stronger opponent is
dangerous, and, just as on a ship, a greater misfortune must be
avoided at some loss, with complete disregard of anger and hope
which, as Livy has rightly said, are deceitful advisers. The thought
is expressed by Aristotle thus i1 ' It is better to relinquish something
of one's possessions to those who are stronger, than to be conquered
in war and perish with the property.'
Romans,
xii. 18.
[= Cicero,
Letters to
Friends,
IV. vii. 2.]
[VII. xl.
19.]
[Rhetoric
to Alex-
ander, ii.]
1 Philo, De Constilutione Principis [On Justice, xiii], says: ■ Peace, even though with great loss,
is better than war.'
862
On the Law of War and Peace
[Book III
[XXX.
xxx. 18.]
[Rhetoric
toAUx-
ander, ii.]
[XIII.
liii.]
Civil War,
I [III. x].
V. — The consideration stated is also usejul to the conqueror
Again, human advantage draws in the same direction also the
stronger. The reason is, as the same Livy no less truly says, that
peace is bounteous and creditable to those who grant it while their
aflairs are prosperous ; and it is better and safer than a victory that
is hoped for. It must be kept in mind that Mars is on both sides.
As Aristotle says, * In war men ought to consider how many and how
unexpected changes are wont to occur.' In a certain oration for
peace in Diodorus Siculus those are censured who magnify the great-
ness of their exploits, as if it were not evidently customary for the
fortune of war to bestow favours alternately. And especially must
the boldness of the desperate be feared ; l wild beasts bite most
fiercely when dying.
VI. — The consideration stated is useful likewise to those whose fortunes
are in doubt
But, if both sides seem to be equal to each other, this in truth,
as Caesar says, is the best time to treat of peace, while each has con-
fidence in himself.
[For
Gabinius,
frag., in
Jerome,
Apology
against
Rufinus,
Li.j
VII. — Peace, when made, must be kept with the utmost scruple
Moreover peace, whatever the terms on which it is made,
ought to be preserved absolutely, on account of the sacredness of
good faith, which I have mentioned ; and not [610] only should
treachery be anxiously avoided, but everything else that may arouse
anger. What Cicero said about private friendships you may apply
to public friendships no less correctly : not only should all friend-
ships be safeguarded with the greatest devotion and good faith, but
especially those which have been restored to goodwill after enmity.
VIII. — A prayer, and the end of the work
May God, who alone hath the power, inscribe these teachings
on the hearts of those who hold sway over the Christian world.
May He grant to them a mind possessing knowledge of divine and
human law, and having ever before it the reflection that it hath
been chosen as a servant for the rule of man,2 the living thing most
dear to God.
1 [Plutarch, Marius, xlv= p. 432 c :]
We even have tc fear the dying lion's den.
* So Chrysostom in his sermon On Alms [beginning] : ■ Man is the being dearest to God.'
APPENDIX
FROM THE LIFE OF ST. LOUIS, KING OF FRANCE, BY JOINVILLE,
CHAPTER LXXXIX
Those who were in the Great Council of the king would often
reprove him because he expended so much labour upon the restora-
tion of peace among those outside his realm, saying that he was
making a mistake in not permitting them to wage war, and that
later this would result in their being dealt with more easily.
The king would reply that they were wrong. ' If ', he said,
1 the princes and rulers, who are my neighbours, should see that
I readily allowed them to wage wars with one another, they would
say to one another, " The king of France allows us to wage war with
evil intent ", and in consequence they would conceive a hatred of
me and at some time would attack me ; and from this source mis-
fortune would result for my kingdom. Besides, it could happen that
I should bring upon myself the wrath of God, since God says that
those are blessed who strive to recall the hostile to peace and har-
mony.'
I am able to affirm that the Burgundians and Lotharingians,
perceiving the goodness and justice of the king, were so devoted to
him and so respected him, that they settled in his presence the causes
of controversy which arose between them. I saw them often coming,
now to Paris, now to Rheims, now to Melun, and again to other places,
where the king was.
FROM THE LIFE OF THE SAME, IN CONNEXION WITH THE INJUNCTIONS
OF ST. LOUIS THE KING GIVEN TO HIS SON
From the records of the Collegium Rationalium in the city of Paris
If any suit or action at law is commenced against you, inquire
as fully into the truth against you as for you.
If you perceive that you have anything belonging to another,
which it is established that you or your ancestors have taken, cause
it to be restored immediately.
Do not wage war against any Christian except on the advice
1569.27 3 m 863
864 Appendix
of many, and only if you cannot avoid war. But if you are at war,
refrain from injuring the clergy and those who have done you no
harm.
If war or quarrellings arise among your subjects, bring them back
to harmony, as soon as this can be done.
Examine often, what your bailirTs, prefects, and other officials
are doing, and inquire into their acts, in order that you may correct
whatever ought to be corrected. See to it that no disgraceful sin
hold sway in your kingdom.
COMMENTARY
OF
HUGO GROTIUS
ON
THE EPISTLE OF PAUL THE APOSTLE
TO PHILEMON
3 M 2
[6i2] THE PRINTER TO THE READER
Since about this time there came into our hands the commentary
of the same author on the Epistle of Paul to Philemon, we thought
best to give it a place here, not only that it might be preserved along
with the larger work, but also because it contains some matter not
foreign to the subjects which are treated in that work, in Book I,
chapter ii, and Book III, chapters vii and xiv.
[N O T E S
ON
THE EPISTLE OF PAUL TO PHILEMON]
1. IIcu)\o5 Seo-fiLos XpLcrTov 'Irjcrov, ' Paul, a prisoner of Jesus
Christ '. — At Rome, living under guard of a soldier, who was bound
with the same chain ; Acts, xxviii. 16. The genitive here indicates
cause ; so also below, verse 9, Epbesians, iii. 1, and 2 Timotby, i. 8. In
Ephesians, iv. I, Sccr/uos ev KvpLcp, ' prisoner in the Lord ', instead.
kcu Tuxdfeos 6 dSeX^ds, ' and brother Timothy '. — The Chris-
tians called one another ' brother ' because of a common regeneration.
Timothy — almost always a companion of Paul, as may be seen in
2 Timotby, iii. 10 — was with him also in Rome ; Epbesians [Philip-
pians\ i. 1, Colossians, i. 1.
<&L\ifjfiovL tco dyaTTTjTco, ' to Philemon dearly beloved '. — The
name Philemon is Greek. This was the name also of a poet of merit,
and of a writer on natural history who is mentioned by Pliny. Philemon
seems to have lived at Ephesus, where Onesimus afterward held the
office of bishop, as Ignatius in his Letters and other writers bear
witness. Paul calls him ' dearly beloved ', or ' most dear ', because
he considered Philemon, as an exceedingly devout man, in a relation
of more intimate friendship.
koI avvepyco rjficov, 6 and our fellow-worker '. — That is, as one
of the presbyters, of whom there were several at Ephesus ; Acts,
xx. 17. The Apostles applied the term ' fellow-workers ' to all the
presbyters (7rpeo-/3vTepoL) and also to the elderly women (Trpeo-fivTLSes)
who sought to bring women to Christ ; Romans, xvi. 3, 9, Pbilippians,
ii. 25, Colossians, iv. 11.
2. /ccu 5A7r</>t<x 777 dyaTT7)Trj, ' and to Appia dearly beloved '. —
The name Appia is Roman, tt being changed to <f> according to
Hebrew usage.
Kal 'ApxLTnrcp tco crvcTTpaTLcoTrj fjfjicov, ' and to Archippus our
fellow-soldier '. — He seems to have served as an evangelist, now at
Ephesus, now at Colossae [613] ; Colossians, iv. 17. The testimony
of Ambrose indicates that Archippus afterward took up his residence
at Colossae, and so was made a bishop. Paul was wont to call his
helpers ' fellow-soldiers ' on account of the burdensomeness of the
task, as may be seen by referring to Pbilippians, ii. 25.
kcll 777 Kar olkov ctov eKKkrjCTLa, ' and to the church which
is in thine house '. — The reference must be to Philemon, to whom
867
868 Notes on the Epistle of Paul to Philemon
this epistle is chiefly addressed. In his house there were several
Christians. According to Tertullian even three Christians constitute
a church. Similarly, those who were in the house of Aquila and
Priscilla are called a church, Romans, xv. 15 [xvi. 5], and 1 Corinthians,
xvi. 19 ; also, those who were in the house of Nymphas, Colossians,
iv. 15.
3. X<*PL'* vpWi KaL tlprjvrj arrb (deov irar pbs rjjxcov, koli Kvpiov
'lrjcrov XpicrTov, ' grace to you and peace from God our father,
and the Lord Jesus Christ \ — He prays for the favour of God
and of Christ on their behalf, and for prosperity in all things, which
the Jews are accustomed to designate by the word ' peace \ Paul
frequently uses this prayer, as 1 Corinthians, i. 3, 2 Corinthians, i. 2,
Galatians, i. 3, Ephesians, i. 2, Colossians, i. 2, j Thessalonians, i. 1.
4. Euxa/Hcrraj tw ®eo> fxov, ' I thank my God \ — We ought to
give thanks to God for gifts conferred not only on ourselves but also
on others ; Romans, i. 8, J Corinthians, i. 4, Ephesians, i. 16.
irdvTOTe p.veiav crov 7roiov(JLevo<; eVl to>v 7rpocrev)(o)v jxov, ' always
making mention of thee in my prayers '. — We find the same words
in the verse last referred to, Ephesians, i. 16 ; whence we may
learn that under rrpoaevyaU ' prayers \ here are included all utter-
ances addressed to God, even those in which no petition is offered
but thanks are given.
5. olkovcov crov ttjv ayaTTTjv Kal tt)v tticttiv, ( hearing of thy
love and faith '. — He states the reason for the giving of thanks, such
as you will find also in the verses already referred to : Romans, i. 8 ;
j Corinthians, i. 4 ; Ephesians, i. 16. Here a noble pair is named,
love and faith. See J Corinthians, xiii ; Galatia?is, v. 6 ; Ephesians,
vi. 23 ; J Thessalonians, iii. 6; J Timothy, i. 14 and vi. 11 ; 2 Timothy,
i. 13 and ii. 22.
y)v e^et? 7rpo5 tov Kvpiov 'lrjcrovv, ' which thou hast toward
the Lord Jesus '. — This has reference to faith.
Kal et<? TTavra^ tovs ayiovs, ' and toward all the saints '. —
This has reference to love. All Christians are called ' saints ', as
Ephesians, u 1, and frequently elsewhere.
6. 07TOJ9 r) KOLvoivia ttJ? wicrTeojs crov ivepyrjs yevrjTai ev eiriyvojcrei
7tcu>to9 epyov dyaOov tov ev v/xlv et9 XpLcrrbv 'lirjcrovv, ' that the
fellowship of thy faith may become effectual in the knowledge of
every good work which is in you unto Christ Jesus '. — First, there
is a transposition here. For the words eU XpicrTov 'irjcrovv, ' unto
Christ Jesus ', relate to the preceding words 7779 iricrTeo)<; crov, ' of thy
faith '. Then, Koivtovia T779 nicrTeojs, ' the fellowship of faith ', was
put in place of ' the faith which was common ' to Philemon and
the other Christians. And ev emyvoicrei, ' in the knowledge ', is
here to be taken TraQr)TiKo\%\, ' in a passive sense ', and carries the
Notes on the Epistle of Paul to Philemon 869
signification of becoming known. The meaning, then, is : Thy love
had this^ in view, that the faith, which thou hast in common with the
other saints, should become effectual, and thus should be made known
through the good works which proceed from thee and from others.
'Evepyr)s ^ yevrjraL, * should become effectual ', is here used with
the same implication as 7rtcrTt9 81 dydirr)<; ivepyovfxevr), c faith working
through love ', Galatians, v. 6. Thence follows eViyi/owris, that is,
the making known of the same faith ; for faith is shown through
works, James, ii. 18.
7. Xapdv ydp eypixev 7ro\\r)v koX TrapdWiqcrLV, ' For we have
great joy and comfort '.— Justly, he says, we thank God for those
virtues of yours, because from that source come to us our greatest
joy and [614] a solace in the evils which we endure for the sake
of the Gospel. So also 2 Corintbians, viL 4, 13 ; 1 Thessalonians, iii. 7.
otl ra cnr\dyxya tcov dyCcov dvaTrhtavTai Sict croO, ctSeXc^e',
1 because the bowels of the saints have been refreshed through thee,
brother '. — ^7r\dyyya, * bowels ', is here used instegd of the word for
' soul ', as Sirach [Ecclesiasticus\ xxx. 7, xxxiii. 5. Consequently,
dvaireTravTaL to. o-TrXdy^ya, * the bowels have been refreshed ', and
dvaTravcrov jxov tcl cr7rXcty^z/a, ' refresh my bowels ', in verse 20 below,
have a meaning similar to dviiravo-av to ifibv 7rvevfxa, c they refreshed
my spirit ', in J Corintbians, xvi. 18. The poor, he says, are of tranquil
mind, because they have learned by experience that in thy riches a
resource has been provided against their necessities.
8. Ato 7ro\kr)v iv XyotcrTa> Trapprjcriav eyoyv iTTLTacrcreLv crot to
dvrJKov, 6 Wherefore, though I have much boldness in Christ to enjoin
that which is thy duty.' — The calling of an Apostle laid upon me by
Christ gives me this right, to be able to enjoin upon thee and other
Christians the things that it is your duty to do. The word Trapprjo-La,
6 boldness ', went over from Greek speech to Syrian with a broader
meaning, so that it often signifies ' right ', ' authority \
9. Stct ttjv dya7rr)v fxaWov 7rapaKa\co, ' on the ground of love
rather I beseech '. — I prefer to entreat as a friend, by reason of the
close relation of our friendship.
tolovtos a>v, ' since I am such '. — That is, I have recourse to
entreaty, since I am such as you know me to be.
o>s IlauXo?, ' Paul, to be sure '. — Founder of so many churches.
7TpeorfivTr)<;, ' an old man '. — One already advanced in years, to
whom even strangers concede many things.
vvv Se Acat Secr/ttog 'Irjcrov XpLcrrov, ' and now moreover a
prisoner of Jesus Christ ' — that is, a prisoner on account of Christ,
as we said above [note on verse 1]. Great consideration is due to
those who suffer hardships for very honourable causes ; Colossians,
iv. 18 ; Ephesians, iv. 1.
870 Notes on the Epistle of Paul to Philemon
10. wapaKaXa) cre, ' I beseech thee '. — YlapaKaXa) cre here has the
connotation of entreating, or rather of interceding. If slaves had
committed any fault they were wont to arrange for an intercessor on
their behalf, as Donatus suggests in a note to Terence [On Terence's
Phormio, line 140]. Similar to this intercession is that of Pliny on
behalf of a freedman of Sabinianus ; Lettcrs, IX. xxi.
irepl tov ifiov tckvov, bv iyevvqcra iv toIs Secr/xot? /xou, ' on
behalf of my child, whom I have begotten in my bonds '. — Whom
here at Rome, while I was a prisoner, I made a Christian. The rebirth
of a man is the work of God. But so great is His goodness that He
admits His servants to a participation in His name ; 1 Corinthians,
iv. 15 ; Galatians, iv. 19. So likewise the Apostles are said ' to save ',
acj^eiv, Romans, xi. 14, and elsewhere, and 1 Corinthians, vii. 16.
[11.] tov 7rore croi a^prjcrTov, ' who once was of no use to
thee '. — It is the practice of intercessors to soften the harshness of
the offence by words. Onesimus had not merely been ' of no use '
to Philemon, he had also caused a loss to him. Flight and theft are
commonly associated. Thus in the Code of Justinian the title On
runaway slaves [VI. i] is followed by that On thefts [VI. ii]. Says
Martial [Epigrams, XI. liv. 5-6] :
The froward hands from feet have learned to sin ;
No marvel is the thief who was a runaway.
And those who were offering a slave for sale were accustomed to
give assurance that he was not a thief nor a runaway ; [615] Digest,1
XVIII. i. 13 and 34. 3 ; XLVII. vi. 1 and 3 ; XIX. i. 11. 7 and 13. 1 ;
Yarro, On Farming, Book II [II. x. 5] ; Seneca, Controversies, III. xxi
[VII. vi. 23].
12. vvvl 8e' ctol, Kal i/xol evy^p-qaTov, ' but now useful to thee
and to me '. — Because he was useful to Paul, he was useful also
to Philemon. For ' the possessions of friends ', tol tcov <f>Lka)v, are
in common. There is a word-play on the name Onesimus [the
Greek name 'Ojnfcri/xos means ' profitable ', ' helpful '].
bv avenefxxpa, s whom I have sent back '. — Doubtless with this
Epistle.
av Se avTov, TOVTecrTi tol e/xa crnXdy^va, 7Tpocr\af3ov, * do thou,
then, receive him that is mine own bowels '. — Ylpocr\afx/3dvecr6 ai
has various meanings, all of which refer to kindly feeling and acts
of kindness, as is clear from Acts, xviii. 26, Romans, xiv. 1, 3, and
xv. 7. Here I should take it in the sense to receive kindly into one's
house, as in Acts, xxviii. 2. Ta ifxd anXdy-^va, ' mine own bowels ',
that is, as dear to me as my own bowels. So in Plautus [Casina,
line 837], ' my little heart '.
1 [Grotius gives eight references to the Digest ; two are correct, but the others appear to be
mistakes. The references given above are to the passages he evidently had in niind.]
Notes on the Epistle of Paul to Philemon 871
13. ov iyw ifiovXofjLrjv 777)69 ifxavrbv Kariyeiv, * whom I was
wishing to keep with me \ — The indicative mood is here used in
place of the subjunctive, in accordance with Greek usage. I should
have wished to keep him with me, if indeed other considerations,
which will now follow, had not opposed. In regard to this manner
of speaking, see what I have said On Matthew, xxvi. 39.
Iva virep crov StaKovfj /xoi, ' in order that he might minister to
me in thy place '. — That he might render to me in all things the
service which thou wouldst be rendering if thou wert here.
iv 7-019 8eo-/xot5 rov EvayyeXCov, * in the bonds of the Gospel '.
— In these bonds, which I bear for the sake of the Gospel. The
manner of speaking is the same that we found above in verse 9.
14. ^o)/oi5 Se Trjs 0-779 yvcofjLTjs ovhev r)6eXr)cra rroLrjcraL, ' but I
wished to do nothing without thy consent '. — I was unwilling to
make use of him except with thy full approval.
Iva jxr) o>9 Kara dvdyKrjv rb ayaOov crov, dWd Kard eKOvcrLOV, ' that
thy goodness might not be as it were from constraint, but from free
will '. — If Paul should have kept him, the desire of Philemon would
not have become so apparent as it would be if he should have been
sent to Philemon, and Philemon should send him back to Paul ; Seneca,
On Benejits, II. iv : ' If you wish to know whether I am willing, make
it possible for me to be unwilling '. 'Ekovctlov, ' of free will ', and
dvayKalov, ' necessary ', or, rb Kar dvdyKrjv, * that which is from
constraint ', are used in contrast, as in 1 Peter, v. 2. So Paul the jurist
sets over against each other performance from free will and from
constraint, Digest, III. v. 18. 2. Praise, moreover, is not due except
to free actions.
15. Tct^a ydp Sia tovto, ' For perhaps on this account '. — As
if he were to say, ' Perchance that was the plan of God, when He
permitted him to run away '. Compare Genesis, xlv. 5.
iXvpLo-Or), ' he went away '.— Here also you see what we said
above, that a thing harsh in reality is softened in statement ; he said
' went away ', ixopLcrdrj, instead of ' ran away '. Such expressions
the Greeks call eixfyrjiJLLcrpoL, ' euphemisms '.
717)69 ajpav, ' for a time '.— That is, for a short time. Thesame
type of expression is found in 2 Corintbians, vii. 8 ; Galatians, ii. 5 ;
and 1 Thessalonians, ii. 17.
Iva aiajvLov avrbv eXV^ ' that thou mayest have him back
forever '.— That, reformed by me, he may be permanently useful to
thee. A.lajvLov, ' forever ', is here used as in Horace, ' will serve
forever ' [Epistles, I. x. 41].
Evangelical teaching does not remove differences of status and
the authority of masters over slaves, as is clear from 1 Timothy, vi. 1, 2 ;
Titus, ii. 9 ; 1 Peter, ii. 10 [ii. 18] ; Ephesians, vi. 5, 6 ; Colossians,
872 Notes on the Epistle of Paul to Philemon
iii. 22. [616] There is therefore no reason why a Christian, who as
a master is able to have full authority over slaves, may not as a ruler
have full authority over subjects. Similar are the master in his house,
the king in his kingdom. Says Seneca, On Benefits, III. xviii : ' If
a slave is hindered from attaining merit [as a benefactor of his
master] by necessity, and the fear of suflering to the utmost, the
same obstacles will hinder both him who is subject to a king and him
who is under a commander, since, although under diflerent names,
they are similarly subject to authority.' And so Peter places on an
equality the authority of kings and that of masters. For without
having recourse to a magistrate masters were able to torture slaves
who had misbehaved, and even to put them to death ; Digest, I. vi. 1 ;
Institutes, I. viii. 1. This, moreover, was the law not only at Rome
but also in Greece ; see Seneca, Controversies, V. xxxv [X. xxxv].
This in fact came from the law of nations, as we learn from the texts
of law just cited.
In what way masters ought to apply this law, from the time that
they became Christians, Paul taught them ; and he would have said
the same things to kings if at that time kings had been Christian, as
many of the masters were. Both Nicodemus and Joseph of Arimathea
were councillors, possessing authority and power to punish. For the
public council of the people as well as that of the city of Jerusalem
had the right of scourging, as is clear from Matthew, x. 17 ; Acts, v. 48
[v. 40] ; 2 Corinthians, xi. 24. Furthermore, it had also the right of
punishing with death, if the Romans at any time should permit this,
as the Jews had a general permission to kill a foreigner who should
enter the enclosure of the Temple. Nevertheless, Christ never bade
these councillors, His disciples, to withdraw from that office. If He
had done so, He would undoubtedly have broken a law by which
those that had been in a lawful manner called to this office were
ordered to discharge its duties. But such procedure was far from
Him. While He passed the life of a mortal, He was * under the law ',
Galatians, iv ; and He did not break the law in any particular Himself,
nor instigate others to break it.
16. ovk en w5 SovXov, ' not now as a slave '. — Supply ' merely ',
as is indicated by what follows. Frequently in the speech of all
peoples, but especially in Hebrew, this particle is understood. Again,
TTpoo-Xafiov, ' receive ', is to be repeated from what has gone before.
dXX* virkp SovXov, ' but as more than a slave '. — Belonging to
thee not by the law of the master alone, but etc.
a&€\<f>bv dya7rrjTov, ' a beloved brother '. — Assuredly to all
Christians.
fxdXto-Ta ifioi, ' especially to me '. — To me who have made trial
of his faithful service.
Notes on the Epistle of Paul to Philemon 873
noorco Se fjiaWov oroi, ' but how much more to thee \— - He ought
to be much more dear to thee than to me, because he will be always
in thy service, so long as thou shalt desire.
kcll iv aapKi, 'both in the flesh '. — The body of Onesimus belongs
not so much to himself as to thee, Krrjcrei kcu xPV0"*1* ' m respect to
possession and use '. In Aristophanes, Cario says [Plutus, 6-J~\ :
Mastery of the body Fortune gives not to the master,
But to him who by a purchase makes it his.
Sctpf, ' flesh ', and crcofxa, ' body ', are often used one for the
other, as is clear from the Hebrew ; Zephaniah [Sophoniah], i. 17 ;
Ezekiel, x. 12; and other passages, with comparison of the Greek
and Latin translations.
[617] 17. ei ovv ifjLt €Xa? kolvcovov, ' if, then, thou countest
me a partner '. — If thou countest me a friend, and as such sharing
in thy concerns.
wpoo-Xafiov avrovy ' receive him '. — Not only refrain from the
punishment which by thine own right thou wert able to inflict, but
also receive him kindly. ' You received into your house, unto your
heart ', said Pliny in regard to a matter quite similar ; Letters, IX. xxiv.
o)? e/xe, ' as myself '. — For since Onesimus was a friend of Paul,
whatever was done for him seemed to be done for Paul himself.
18. Et Se tl 7781*770-6' o-e, ' Moreover if he hath wronged thee
in any respect '. — If he carried off something when he ran away.
77 6<^€tXet, ' or owes [thee] '. — Or if according to thy accounts
he was a defaulter. A general term is here used instead of the par-
ticular term.
tovto ifiol iXXoyeL, * charge this to me '. — Charge that to my
account. Make me instead of him thy surety.
19. 'Eyw IlauXo? eypaxpa Trj e/177 x€LPh ' J Paul nave written
with my own hand '. — That thou mayest be certain, thou hast here
my handwriting. Thou wilt be able to bring action against me at
any time by reason of the autograph. This is what the Scholiast on
the Digest9 XX. iii. 4, calls ' to write a note of hand '. Add Digest
[Code\ IV. ii, and Digest, XXXIV. iii. 3.
iycb airoTLcrcoy ' I will repay '. — This, in Latin, is said to con-
stitute a pecuniary obligation, and there is a title on the subject in
the Digest [XIII. v]. The formula itself is contained in the words
iyco awoTLCTco, or satisfaciam tibi, ' I will satisfy you ', as Novels, cxv. 6,
has it ; this is ordinarily inserted in the Code, under the title ' On
constituting a pecuniary obligation ' [IV. xviii]. Similarly in Digest,
XIII. v. 5. 3, this formula is found : ' I have written in accordance
with the commission of Seius, that if anydebt to you has been
approved I will guarantee it to you and will pay it without con-
troversy.' And there is another formula in the same title, Digest,
874 Notes on the Epistle of Paul to Philemon
XIII. v. 26 : ' The ten [pieces of money] which Lucius Titius had
received as a loan from your money-chest you have, Sir, in my posses-
sion, with full reckoning of interest.'
Moreover, an obligation can be created even in respect to money
which is owed only according to the law of nature (Digest, XIII.
v. 1. § 7). Slaves can owe their masters, not indeed by municipal law,
but by natural law (Digest, XLV. iii. 1). So also a surety is rightly
accepted for an obligation arising by nature (Digest, XLVI. i. 8. § 3).
Iva llt) Xeyco crot otl kolI creavrov llol tt poaocfreLkeLs, c not to say
to thee, that thou owest to me thy very self. — It is a * figure ',
cr\rjfxa, of * passing over in silence ', TrapacrLcoTrrjcrL^, or of ' keeping
silent ', when we say that we wish to omit that which we are saying
with the utmost emphasis. I could say, Paul remarks, that thou
art in debt to me not only for wrhat thou hast but also for thy very
self ; with reason, for without Paul Philemon would have been, and
would have remained, in dense darkness and in sin, far from the hope
of salvation.
20. Nctt, aBeXcfye, ' Yes, brother '. — Nctt is here the utterance of
one entreating, as in Hebrew.
iyco crov bvaLLirjv iv KvpCcp, ' Let me have joy of thee in the
Lord '. — That is, may it be permitted to me to rejoice by reason of
thy progress in Christ. Compare Sirach [Ecclesiasticus], xxx. 2,
6 Traihtvaiv rov vlov avrov, ovrjo-erai inl avrco, " whoso teacheth
his son shall have joy in him '. Ignatius, To the Magnesians [ii],
says : SiaKovov "EcotCovos, ov iyco bvaCjjLrjv, ' of the deacon Sotion,
in whom may I have joy ' ; and To the Ephesians [ii. 2] : bvaCfirjv
vllcov Stct Travros, ' May I have joy of you always '.
avdrravaov /jlov tol cnr\ayyya iv KvpLcp, ' refresh my bowels in
the Lord '. — That is, for Christ's sake cause me to be at peace in
regard to this matter.
21. Ue7roL6co<; rrj vrraKofj crov eypaxpd croi, * Having confidence in
thine obedience I have written unto thee '. — My confidence has been
inspired by the knowledge of that obedience of thine which thou
renderest to the Gospel. [618] So v7raKorj, ' obedience ', is taken
in Romans, i. 5, xv. 18, xvi. 19 and 26; 2 Corinthians, vii. 15, x. 5
and 6 ; 1 Peter, i. 14 and 22.
etSw? otl Ka\ vrrep o \iyco TroLrjcreLS, ' knowing that thou wilt do
even beyond what I say '. — I count it certain that thou wilt do more
than I should dare to demand.
22. "A/xa Se /ccu eroLiialJ. llol £eviav, ' At the same time moreover
prepare me also a lodging '. — Prepare a lodging ; so £evia, ' lodging ',
is used in Acts, viii. 23 [xxviii. 23], and by Josephus and others.
eATri^co ydp otl Sict tcov Trpocrevyoiv vllcov yapLcrSrjCTOLLaL vlllv, ' for
I hope that through your prayers I shall be granted to you '. — I hope
Notes on the Epistle of Paul to Philemon 875
that in answer to your prayers God will vouchsafe me to you, that is
my coming to you. Some think that this hope of Paul was fulfilled
and that, freed from his bonds, he went to Asia ; that he returned
to Rome.
23. ' AcnrdtpvTal cre 'E7ra</>/)cU, ' There salute thee Epaphras . . .'
— The full name is 'E7ra</>pdSiro9 (Epaphroditus) ; Philippians, ii. 25 ;
iv. 18. The contracted form 'Ena^pas is found in Colossians, i. 7 ;
iv. 12. Many contracted names of this sort, in a?, we have brought
together at the beginning of Luke.
6 crvvai)yid\(0T6<; p.ov, ' my fellow-prisoner '. — One of those of
whom mention is made in Acts, xxvii.
ev XpLo-TO) 'lrjorov, ' in Christ Jesus '. — That is, on account of
Jesus Christ, as in verse 20 above.
Mayo/co?, ' Mark '. — He of whom mention is made in Acts, xii. 12
and 25 ; xv. 37 and 39 ; Colossians, iv. 10.
24. ArjfjLas, ' Demas '. — Whose full name was Demetrius. He is
mentioned in Colossians, iv. 14 ; 2 Timotby, iv. 10.
Aov/cas, ' Luke '. — A physician who gave to us the Gospel and
the Acts. See Colossians, iv. 14; 2 Timothy, iv. II.
ol o-vvepyoi jjlov, ' my fellow-workers '. — See on verse 1 above.
[25.] eH x^Pt? ro^ Kvptou t)jxo)v 'Itjctov XpLCTTOv, ' the grace of
our Lord Jesus Christ '. — The favour of Christ.
fjL€Ta tov irvevfJLaTos vfJLOJV, ' with your spirit '. — That is, be
with you. The same phrase is used in Galatians, vi. 18. Elsewhere in
place of this phrase he said : fxed' vfio>v, /ca! /xera ndvTOJv vfxo)v,
' with you ', ' and with you all '.
'AfjLrjv, ' Amen '. — This is the word with which the Church made
response after the reading of the Epistles. In consequence it began
to be added to all the Epistles of Paul. See what I have said On
Matthew, vi. 13.
LIST OF EDITIONS AND TRANSLATIONS OF
THE DE JURE BELLI AC PACIS i
1. Hvgonis Grotii de ivre Belli ac Pacis libri tres. In quibus Paris 1625.
ius naturae & Gentium : item iuris publici praecipua explicantur.
Parisiis ; Apud Nicolavm Bvon, in via Iacobasa, sub signis
S. Claudij, & Hominis Siluestris. M. DC. XXV. Cvm Privilegio
Regis. 40. [Not all the copies of this edition are alike, in
consequence of changes made by Grotius during printing.]
2. Hvgonis Grotii . . . explicantur. Moeno-Francofvrti, Frankfort-on-
Typis & Sumptibus Wechelianorum, Danielis & Dauidis Aubrio- the-Main
rum & Clementis Schleichii. Anno M. DC. XXVI. 8°. l626'
3. Hvgonis Grotii . . . explicantur. Editio secunda emen- Amsterdam
datior, & multis locis auctior. Amsterdami, Apud Gvilielmvm l63J-
Blaevw. CI3 IOC XXXI. Cum privilegiis S. Caesarese Maj. &
Christianissimi Galliarum Regis. fol.
4. Hugonis Grotii . . . explicantur. Editio tertia emen- Amsterdam
datior, & multis locis auctior. Amsterdami, Apud Ioannem l632-
Iansonium. CIO IOC XXXII. 8°.
5. Hvgonis Grotii . . . explicantur. Editio nova ab Auctore Amsterdam
ipso recognita & correcta : de qua vide pagina sequenti. Amster- l632-
dami, apud Gvilielmvm Blaev. CIO IOC XXXII. Cum privi-
legiis S. Caesareae Majestatis, & Christianissimi Galliarum Regis.
8°.
6. Hvgonis Grotii . . . explicantur. Editio nova cum Amsterdam
Annotatis Auctoris. Accesserunt et Annotata in Epistolam l642-
Pauli ad Philemonem. Amsterdami, apud Ioh. & Cornelivm
Bhev. CIOIDCXLII. 8°.
7. Hvgonis Grotii . . . explicantur. Editio nova cum Amsterdam
Annotatis Auctoris, Ex postrema ejus ante obitum cura multo l646-
nunc auctior. Accesserunt & Annotata in Epistolam Pauli ad
Philemonem. Amsterdami, apud Iohannem Blaev. M D C
XLVI. 8°.
8. Hugonis Grotii . . . Philemonem. Amsterdami, sumpti- Amsterdam
bus Henrici Laurentii. M D C XLVIL fol. l647-
1 Reprinted in summary form, by permission of Jacob ter Meulen, Librarian of the Peace
Palace at The Hague, from his elaborate bibliographic list in the Bibhotheca Vissenana,
volume v (Leyden, 1925), pages 159-99. No. 34^ was discovered by Dr. ter Meulen after the
publication of his list.
877
8yS
List of Editions and Translations
Amsterdam
1650.
Amsterdam
165 1.
Amsterdam
1651.
Amsterdam
1660.
Amsterdam
1663.
Amsterdam
1667.
Amsterdam
1670.
Jena 1673.
Amsterdam
1680.
The Hague
1680.
Jena 1680.
Amstelaedami, apud
Amstelaedami, apud
Amstelodami, Apud
Amstelaedami, Apud
Amstelaedami, Apud
9. Hvgonis Grotii . . . Philemonem.
Ioannem Blaev. MDCL. 8°.
10. Hvgonis Grotii . . . Philemonem.
Ioannem Blaev. MDCLI. 8°.
11. Hugonis Grotii . . . Philemonem.
Ioannem Janssonium. CIO IDC LI. 8°.
12. Hvgonis Grotii . . . Philemonem.
Ioannem Blaev. M DC LX. 8°.
13. Hvgonis Grotii . . . Philemonem.
Ioannem Blaev. MDCLXIII. 8°.
14. Hvgonis Grotii . . . Philemonem, et Dissertatio de Mari
libero. Amstelaedami Apud Ioannem Blaev. M D C LXVII. 8°.
15. Hvgonis Grotii . . . Mari libero. Amstelaedami, Apud
Joannem Blaev. M DC LXX. 8°.
16. Hugonis Grotii . . . explicantur, Cum ejusdem I.
Annotatis ex postrema ante obitum cura, II. Commentatione
in Epistolam Pauli ad Philemon et III. Dissertatione de Mari
Libero Publice ad Disputandum propositi, novis Animadver-
sionibus illustrati, Indiceque Rerum ac Verborum locupletissimo
adornati, Dirigente Johanne Georgio Simone, . . . Jenae Apud
Johann. Theodor. Fleischern. Typis Samuelis Adolphi Mulleri.
M.DC. LXXIII. 40.
17. Hugonis Grotii . . . explicantur. Editio novissima cum
Annotatis Auctoris, ex postrema ejus ante obitum cura. Acces-
serunt Annotata in Epistolam Pauli ad Philemonem, Dissertatio
de Mari libero, & Libellus singularis de Aequitate, Indulgentia
& Facilitate, quem Nicolaus Blancardus Belga Leidensis e codice
Autoris descripsit & vulgavit. Nec non Joann. Frid. Gronovii
V. C. notae in totum opus de Jure Belli ac Pacis. Amstelaedami,
Apud Janssonio-Waesbergios, M DC LXXX. 8°.
18. Hugonis Grotii . . . explicantur. Editio novissima . . .
vulgavit. Nec non Joann. Frid. Gronovii V. C. notae in totum
opus de Jure Belli ac Pacis. Hagae Comitis, Apud Arnoldum
Leers, M DC LXXX. 8°.
19. Hugonis Grotii . . . explicantur. Cum ejusdem I.
Annotatis ex postrema ante obitum cura, II. Commentatione
in Epistolam Pauli ad Philemon. III. Dissertatione de Mari
Libero, IV. Epistola de Studiis instituendis, ad Benjaminum
Maurerium, Legatum Regis Galliae &, V. Excerpto ex alia de
juris studio. Publice olim ad Disputandum propositi, nunc vero
List of Editions and Translations 879
novis Animadversionibus & adjectionibus locorum concor-
dantium illustrati, allegatione Scriptorum distinctiori, Indiceqve
pariter Rerum ac Verborum locupletissimo adornati, Dirigente
Johanne Georgio Simone, . . . Jenae, Sumtibus Johannis Theodori
Fleischeri, Bibliopol. Rudolphstadii, Literis Christophori Flei-
scheri, Anno MDC LXXX. 8°.
20. Hugonis Grotii . . . explicantur. Cum Annotatis Amsterdam
Auctoris, ex postrema ejus ante obitum cura. Accesserunt l689-
Annotata in Epistolam Pauli ad Philemonem, Dissertatio de
Mari Libero, & Libellus singularis de Aequitate, Indulgentia &
Facilitate quem Nicolaus Blancardus Belga-Leidensis e codice
Auctoris descripsit & vulgavit. Nec non Joann. Frid. Gronovii
V. C. Notae in totum opus de Jure Belli ac Pacis. Amstelodami.
Sumptibus Janssonio-Waesbergiorum, M DC LXXXIX. 8°.
21. Hugonis Grotii . . . explicantur. Cum Annotatis . . . Amsterdam
vulgavit. Nec non Joann. Frid. Gronovii V. C. Notae in totum l689-
opus de Jure Belli ac Pacis. Amstelodami. Sumptibus Abrahami
a Someren, M DC LXXXIX. 8°.
22. Hugonis Grotii . . . explicantur, cum Annotatis Autoris Frankfort-on-
ex postrema ejus ante Obitum cura : Accesserunt Excerpta the-Oder
Annotationum Variorum Virorum Insignium in totum Opus, l691,
edente Joh. Christoph. Becmano. . . . Francofurti ad Viadrum,
Impensis Jeremiae Schrey/ M.DC.XCI. 40.
23. Hvgonis Grotii de Jure belli et pacis libri tres, cum Frankfort-on-
annotatis Ipsius Autoris, & clarissimi Gronovii ; tum noviter the-Oder
accuratis commentariis perpetuis Joh. Tesmari JCti Celeberrimi. J^
Opus vt mvltorvm annorvm, ita Academiis, Aulis, Dicasteriis, diu
multumque desideratum ; Theologis, Jure-Consultis, Philosophis,
Oratoribus,omnibusque adeo solidae eruditionis studiosis perquam
utile & necessarium ; quippe in quo textus Grotianus fideliter
exhibetur, obscuriora perspicue illustrantur, dubia rationibus &
auctoritatibus tam veterum quam recentium Scriptorum solide
confirmantur, Paradoxa modeste diluuntur, omissa sedulo sup-
plentur, aliorumque interpretationes solicite perpenduntur &
inter se conferuntur. Ad calcem operis accessere Ulrici Obrechti,
JCti Excellentissimi, Observationes ad eosdem Libros, cum
Indicibus plenissimis. Francofurti ad Moenum Sumptibus Joan.
Davidis Zunneri, Typis Joannis Baueri, M DC XCVL fol.
24. Hugo Grotius de Jure belli ac pacis In quibus Jus Leyden 1696.
Naturae & Gentium, item Juris publici praecipua explicantur.
Cum annotationibus Auctoris, & Notis eruditissimis Variorum.
Ex accuratissima recensione & cum animadversionibus viri
1569-27 3 N
88o
List of Editions and Translations
Frankfort-on-
the-Oder
1699.
Amsterdam
1701.
desideratissimi Gothofredi Spinaei, In Academia Lugd. Batava,
(dum viveret) Professoris ordinarii. Editio plane nova. Lugduni
Batavorum, Ex Officina Johannis du Vivie, Bibliopolae 1696. 40.
Utrechti696- 25. Hugonis Grotii . . . explicantur, Cum commentariis
i7°3* Gulielmi vander Muelen . . . Accedunt Et Authoris Annotata,
ex postrema ejus ante obitum cura nec non Joann. Frid. Gronovii
V. C. Notae in totum opus. Ultra Jecti, Prostant apud Guliel-
mum vande Water [Gulielmum Broedelet], Bibliopol. CIO
IOC XCVI [MDCC] [MCDCIII]. 3 v. fol.
26. Hugonis Grotii . . . explicantur, Cum Annotatis Autoris
ex postrema ejus ante obitum cura : Accesserunt Excerpta
Annotationum variorum Virorum Insignium in totum Opus,
edente Joh. Christoph. Becmano. Editio secunda correctior . . .
Francofurti ad Viadrum, Impensis Jeremiae Schrey / & Joh.
Christoph. Hartmann / M.DC.IC. 40.
27. Hugonis Grotii . . . cura. Accesserunt Annotata in
Epistolam Pauli ad Philemonem, Dissertatio de Mari Libero,
& Libellus singularis de Aequitate, Indulgentia, & Facilitate,
quem Nicolaus Blancardus Belga-Leidensis e codice Auctoris
descripsit & vulgavit. Nec non Joann. Frid. Gronovii V. C.
Notae in totum opus de Jure Belli ac Pacis. Editio novissima, . . .
Amstelodami, Apud Janssonio-Waesbergios. MDCCI. 8°.
Amsterdam 28. Hugonis Grotii . . . ostendit. Amstelodami, Apud
1701. Viduam Abrahami a Someren. MDCCI. 8°.
Amsterdam 29. Hugonis Grotii . . . ostendit. Amstelaedami, Apud
1702. Henricum Wetstenium, ut & Rodolfum & Gerhardum Wet-
stenios, H. FF. CIO 10 CC II. 8°.
Amsterdam 30. Hugonis Grotii . . . explicantur. Cum Commentariis
i7°4- Gulielmi vander Muelen, Domini d'Oudt-Brouckhuysen, Decani
D. Mariae, Aggerum, qui inferiorem Leccae partem coercent,
Praefecti ; &c Accedunt Et Auctoris Annotata, ex postrema ejus
ante obitum cura ; & Joan. Fred. Gronovii Notae in totum opus.
Amstelaedami, Apud Janssonio-Waesbergios & Wetstenios. CIO
10 CCIV. ... 3 v. fol.
Amsterdam 31. Hugonis Grotii . . . explicantur. Cum Annotatis
l712- Auctoris, ex postrema ejus ante obitum cura. Accesserunt
ejusdem Dissertatio de Mari libero, & Libellus singularis de
aequitate, indulgentia, & facilitate, Nec non Joann. Frid. Gronovii
V. C. Notae in totum opus de Jure Belli ac Pacis. Editio novis-
sima, . . . Amstelaedami, Ex Officina Wetsteniana. CIO 10
CCXII ... 8°.
List of Editions and Translations 88 1
32. Hugonis Grotii . . . ostendit. Amstelaedami, Apud Amsterdam
Janssonio-Waesbergios. CIO 10 CCXII. ... 8°. 17«.
33. Hugonis Grotii . . . cura. Accesserunt Excerpta Anno- Frankfort-on-
tationum variorum virorum insignium in totum opus edente the-Oder
Joh. Christoph. Becmano. Editio Secvnda Correctior. . . . x?
Francofurti ad Viadrum Apvd Jeremiam Schrey. MDCCXVIII.
4°-
34. Hugonis Grotii . . . cura. Accesserunt ejusdem Dis- Place un-
sertatio de mari libero, & Libellus singularis de aequitate, indul- known l7l9-
gentia, & facilitate, Nec non Joann. Frid. Gronovii V. C. Notae
in totum opus de Jure Belli ac Pacis. Editio novissima [n.p.].
Anno CIO 10 CCXIX 2 v. 40.
34a. Hugonis Grotii . . . cura. Accesserunt ejusdem Place ?
dissertatio de mari libero, et libellus singularis de aequitate, l7l9-2Z-
indulgentia, et felicitate, nec non Joann. Frid. Gronovii V. C.
notae in totum opus de jure belli ac pacis. Editio novissima.
Augustae 17 19-1723. 2 v. 40.
35. Hugonis Grotii . . . explicantur. Cum Annotatis Amsterdam
Auctoris, ejusdemque Dissertatione de Mari libero, ac Libello l720-
singulari de Aequitate, Indulgentia, & Facilitate : Nec non
Joann. Frid. Gronovii V. C. Notis in totum opus de Jure Belli
ac Pacis. Editionem omnium, quae hactenus prodierunt, emen-
datissimam, ad fidem priorum & optimarum recensuit ; . . .
Notulas denique addidit Joannes Barbeyrac, . . . Amstelaedami,
Ex Officina Wetsteniana CIO 10 CCXX 8°.
36. Hugonis Grotii . . . addidit Joannes Barbeyrac, JC. & Amsterdam
Publici Privatique Juris Antecessor Groninganus. Amstelaedami, l72°-
Apud Janssonio-Waesbergios. CIO 10 CCXX. ... 8°.
37. Hugonis Grotii . . . cura, et Praefatione Christiani Marburg
Wolfii. Marburgi Cattorum, Apud Phil. Casimir. Mullerum. J734-
MDCC XXXIV. 8°.
38. Hugonis Grotii . . . explicantur. Cum Annotatis Amsterdam
Auctoris, ejusdemque Dissertatione de Mari libero ; Ac Libello ^S-
singulari de Aequitate, Indulgentia, & Facilitate ; Nec non
Joann. Frid. Gronovii V. C. Notis in totum opus de Jure Belli
ac Pacis. Ex altera recensione Joannis Barbeyracii, . . . Cum
Notulis ejusdem nunc auctioribus, pluriumque locorum, ex
Auctoribus quibusvis laudatorum, adcuratiori indicatione. Am-
stelaedami, Apud Janssonio-Waesbergios. CIO 10 CCXXXV.
2 v. 8°.
3 n 2
882
List of Editions and Translations
Amsterdam 39. Hugonis Grotii . . . indicatione. . . . Amstelaedami,
1735. Sumptibus Gasparis Fritsch. CIO 13 CCXXXV. 2 v. 8°.
Breslau 1744, 4°- Henrici de Cocceji Sacrae Regiae Majestati Borussicae
1746, 1747, quondam a consiliis secretioribus Grotius illustratus seu Com-
J752- mentarii ad Hugonis Grotii de Jure belli et pacis libros tres in
quibus Jus Naturae & Gentium, item Juris Publici praecipua
explicantur. Adduntur Annotata Authoris ex postrema ejus
ante obitum cura. In commentario id praecipue agitur, ut
Grotius ex ipso Grotio illustretur, defectus circa principia
Grotiana notentur ; et vera juris naturae principia, inprimis
quatenus ad interpretationem juris romani pertinent, pro-
ponantur. Accedunt Observationes S. d. C. H. F. . . . Wratislaviae
sumtibus Johannis Jacobi Korn. Bibliopol. Anno 1744, (1746),
(1747), (1752). 4 v. fol. [The title-page of the fourth volume
enumerates other writings of Grotius.]
Lausanne 41. Hugonis Grotii de Jure belli ac pacis libri tres, Cum
W*2- Annotatis Auctoris, nec non J. F. Gronovii Notis, & J. Barbey-
racii Animadversionibus ; commentariis insuper locupletissimis
Henr. L. B. de Cocceii . . . insertis quoque observationibus
Samuelis L. B. de Cocceii Henrici filii . . . Adduntur tandem
ipsius Grotii Dissertatio de Mari libero, ac Libellus singularis de
Aequitate, Indulgentia et Facilitate. Lausannae, Sumptibus
Marci-Michaelis Bousquet, & Sociorum. MDCCLI, [MDCCLI]
[MDCCLII] [MDCLII]. 5 v. 4°.
42. Hugonis Grotii . . . Facilitate. Cum quibusdam notis
criticis. Lausannae. Sumptibus Marci-Michaelis Bousquet, &
Sociorum. MDCCLVIII. [MDCCLVIII] [MDCCLIX]
[MDCCLIX] [MDCCLIX]. 5 v. 40.
43. Hugonis Grotii . . . explicantur. Cum Annotatis
Auctoris eiusdemque Dissertatione de Mari libero ; Ac Libello
singulari de Aequitate, Indulgentia, et Facilitate ; Nec non
Jo. Fr. Gronovii v. c. Notis in totum opus de Jure belli ac pacis.
Ex altera recensione Joannis Barbeyracii. . . . Cum Notulis
ejusdem nunc Auctioribus, pluriumq. locor. ex Auctorib. quib.
laudat. adcuratiori indicatione. . . . Lipsiae Impensis Ioannis
Pauli Krausii bibliop. Vienn. MDCCLVIII. 2 v. 8°.
Utrechti773. 44. Hvgonis Grotii de Ivre belli ac pacis libri tres, cum
adnotationibus selectis Joann. Frid. Gronovii, & auctioribus
Ioannis Barbeyracii. Accedit H. Grotii Dissertatio de Mari
libero ; Et Libellus singularis de Aeqvitate, Indvlgentia, &
Facilitate. Edidit atque praefatus est Meinardvs Tydeman.
Lausanne
1758, 1759-
Leipzig 1758.
List of Editions and Translations 883
Traiecti ad Rhenvm. Ex officina Ioannis a Schoonhoven & Soc.
CIO 10 CC LXXIII. 2 v. 8°.
45. Hugonis Grotii de jure belli et pacis libri tres accom- Cambridge
panied by an abridged translation by William Whewell . . . l853-
Edited for the Syndics of the University Press. Cambridge :
M. DCCC. LIII. John W. Parker, London. 3 v. 8°.
46. Hugonis Grotii . . . Philemonem. Volume one. Re- Washington
production of the Edition of 1646, Carnegie Institution of ^W-
Washington, 191 3. 40. [For Volume Two see No. j6, post.~\
47. Hugonis Grotii . . . explicantur. Cum annotatis auctoris Leydcn 1919.
edidit P. C. Molhuysen. Prsefatus est C. van Vollenhoven.
Lugduni Batavorum Apud A. W. Sijthoff. MCMXIX. 40.
Translations
Dutch
48. Drie boecken Van Hvgo de Groot, Nopende het Recht Haarlem
des Oorloghs Ende des Vredes. In dewelcke het Recht der l635-
Natuere, der Volckeren, mitsgaders de principaelste stucken van
't Burgelijcke Recht verklaert werden. Eerst in 't Latijn uyt-
gegeven, Ende nu ten dienste van alle Bedienaers vande Bancken
der Justitie / ende andere weet-suchtige Lief-hebbers onses
Vaderlands / In 't Neder-duyts vertaelt Door H. V. Ghedruckt
te Haerlem, by Adriaen Roman / Boeckdrucker, woonende inde
Groote Houtstraet, inde Vergulde Parsze. Anno 1635. 40.
49. Drie Boecken Van 't Recht des Oorloghs en Vredes. . . . Amsterdam
overgheset Door B. D. Seer . . . t' Amsterdam, Gedruckt by 165 1.
Iacob Colom, Boeckverkooper op het Water, in de vyerighe
Colom, Anno 1651. 40.
50. Drie Boecken Van 't Recht des Oorloghs en Vredes . . . Amsterdam
overgheset Door B. D. Den tweeden Druck. Seer . . . t' l657-
Amsterdam, By Ian Hendricksz En Willem van Beaumont,
Boeck-verkoopers. 1657. 40.
51. Hugo de Groot Van 't Regt des Oorlogs en Vredes, . . . Amsterdam
met de beste verklaringen en tegenwerpingen van de Hr. Joh. 1705.
Frid. Gronovius, en anderen : nooit op die wijze in onze spraake
aan 't ligt gebragt. Door Jan van Gaveren. Met een zeer
wijdloopig register. t' Amsterdam, By Fran^ois van-der Plaats,
Boekverkoper in de Gaper-steeg, by de Beurs. 1705. 40.
884
List of Editions and Translations
Amsterdam 52. Hugo de Groot van 't Regt des Oorlogs en Vredes, . . .
l712- Tweeden druk. t' Amsteldam, By Salomon Schouten, Boekver-
kooper in de St. Luciesteeg. 1732. 40.
French
Parisi687. 53. Le Droit de la guerre et de la paix, par M. Grotivs :
divise en trois livres, Ou il explique le Droit de Nature, le Droit
des Gens, & les principaux Points du Droit public, ou qui
concerne le gouvernement public d'un Etat. Traduit du Latin
en Francois, par Monsieur de Courtin. . . . A Paris, Chez Arnould
Seneuze, . . . M. DC. LXXXVII 2 v. 40.
Amsterdam 54. Le Droit de la guerre et de la paix, . . . Traduit du
The Hague Latin en Francois, par Monsieur De Courtin. . . . A Amsterdam,
Chez Abraham Wolfgang ; et a la Haye, Chez Adrian Moetjens.
M. DC. LXXXVIII. 3 v. 120.
TheHague 55. Le Droit de la guerre et de la paix, . . . Traduit du
!7°3- Latin en Francois, par Monsieur De Courtin. Augmente dans
cette Edition de la Dissertation de la Liberte de la mer, &c.
A La Haye, Chez Adrian Moetjens. M. DCCIII. 3 v. 120.
Amsterdam 56. Le Droit de la guerre et de la paix. Par Hugues
J724- Grotius. Nouvelle traduction, par Jean Barbeyrac, . . . Avec
les Notes de 1'Auteur meme, qui n'avoient point encore paru en
Francois ; & de nouvelles Notes du Traducteur. A Amsterdam,
Chez Pierre de Coup. MDCCXXIV. 2 v. 40.
Amsterdam 57. Le Droit de la guerre et de la paix ; par Hugues
*729- Grotius. Nouvelle traduction ; Par Jean Barbeyrac, . . . A Am-
sterdam, Chez Pierre de Coup. M. DCCXXIX. 2 v. 40.
Baseli746. 58. Le Droit de la guerre et de la paix. . . . A Basle, Chez
Emanuel Thourneisen, MDCCXLVI. 2 v. 40.
Leyden 1759. 59. Le Droit de la guerre et de la paix par Hugues Grotius.
. . . A Leide, Aux Depens de la Compagnie. MDCCLIX 2 v. 40.
Basel 1768. 60. Le Droit de la guerre et de la paix par Hugues Grotius.
Nouvelle traduction, Par Jean Barbeyrac, . . . A Basle, Chez
Emanuel Tourneisen, MDCCLXVIII. 2 v. 40.
Leyden-Lyons 61. Le Droit de la guerre et de la paix, . . . A Leyde, chez
^68- J. de Wetstein : Et se trouve, A Lyon, Chez Jean-Marie Bruyset,
Imprimeur-Libraire. MDCCLXVIII. 2 v. 40.
Paris 1865-7. 62. Le Droit de la guerre et de la paix . . . Nouvelle tra-
duction Precedee d'un Essai biographique et historique sur
Grotius et son temps accompagnee d'un choix de notes de
Gronovius, Barbeyrac, etc. completee par des notes nouvelles.
List of Editions and Translations 885
Mise au courant des progres du Droit public moderne et suivie
d'une table analytique des matieres par M. P. Pradier-Fodere,
. . . Paris Guillaumin et Cie 1865 (1867) (1867). 3 v. 8°. 12°.
German
63. Hugonis Grotii Drey Biicher vom Rechte des Krieges Leipzig 1707.
und des Friedens / darinnen das Recht der Natur undder Volcker /
wie auch die vornehmsten Sachen desjenigen Rechtes / welches
von der Regierung eines Staates handelt / erklaret / und die
Anmerckungen des Verfassers hinzugefiiget werden. Aus dem
Lateinischen ins Deutsche iibersetzet durch P. B. S. g. Schutz /
.... Leipzig / verlegts Friedrich Groschuff / im Jahr Christi /
1707. 40.
64. Hugonis Grotii Drey Biicher von Kriegs- und Friedens- Frankfort-on-
Rechten . . . Ins Teutsche iibersetzet und herausgegeben von the-Main
J. N. S Franckfurt am Mayn / Zu finden bey Notar. Fischern / ^0^
neben dem Schonburger Hof. Und daselbst gedruckt bey
Johann Bauern / MDCCIX. fol.
65. Hugonis Grotii Drey Biicher von Kriegs- und Friedens- Frankfort-on-
Rechten, . . . Ins Teutsche iibersetzet und herausgegeben von the-Main
J. N. S. . . . Franckfurt am Mayn, Zu finden bey Wolffgang *721,
Christoph Multzen. Den Laden gegen dem neuen Caffee-
Hausiiber. MDCCXXI. fol.
66. Hugonis Grotii Drey Biicher von Kriegs- und Friedens- Frankfort-on
Rechten, . . . Ins Teutsche iibersetzet und herausgegeben von the-Main
J. N. S. . . . Franckfurt am Mayn, Zu finden bey Wolffgang ^28-
Christoph Multzen MDCCXXVIII. fol.
6j. Des Hugo Grotius drei Biicher iiber das Recht des Berlin 1869.
Krieges und Friedens, . . . Aus dem Lateinischen des Urtextes
iibersetzt . . . von J. H. v. Kirchmann. Berlin, 1869. Verlag
von L. Heimann. 2 v. 8°.
English
68. The illustrious Hvgo Grotius of the Law of Warre and London 1654.
Peace with annotations. III parts. And Memorials of the
Author's Life and Death. . . . London, Printed by T. Warren,
for William Lee, And are to be sold at his shop, at the signe of
the Turks-head in Fleet-street, M. DC. LIV. 8°.
69. idem, M.DCLV. 8°. London 1655.
70. The most excellent Hugo Grotius his three Books London 1682.
Treating of the Rights of War & Peace. . . . Translated into
886
List of Editions and Translations
London 1738.
Pontefract
1814.
English by William Evats, B.D. London, Printed by M. W.
for Thomas Basset at the George in Fleetstreet, and Ralph
Smith at the Bible under the Piazza of the Royal Exchange in
Cornhill. MDCLXXXII. fol.
Londoni7i5. 71. H. Grotius of the Rights of War and Peace, In three
volumes. . . . Done into English by several Hands ; . . . London :
Printed for D. Brown in Exeter Exchange in the Strand ; T.
Ward in the Inner-Temple Lane ; and W. Meares at the Lamb
without Temple Bar. MDCCXV. 3 v. 8°.
72. The Rights of War and Peace, in three books. . . .
London : Printed for W. Innys and R. Manby, J. and P. Knap-
ton, D. Brown, T. Osborn, and E. Wicksteed. MDCCXXXVIII.
fol.
73. The Rights of War and Peace, including the Law of
nature and of nations, translated . . . by the Rev. A. C. Camp-
bell. Pontefract : Printed by B. Boothroyd, and sold by F. and
C. Rivington; Gale, Curtis, and Co., Paternoster Row; Cadell
and Davies, Strand ; and Stockdale, Piccadilly, London. 18 14.
3 v. 8°.
74. Grotius on the rights of war and peace : an abridged
translation. By William Whewell . . . Edited for the Syndics of
the University Press. Cambridge : MDCCCLIII. John W.
Parker, London. 3 v. 8°.
75. The rights of war and peace . . . translated . . . by
A. C. Campbell, A.M. With an introduction by David J. Hill,
. . . M. Walter Dunne, Publisher Washington & London. [190 1 .]
8°. [An abridged reprint of No. 73.]
76. De Jure Belli ac Pacis Libri tres by Hugo Grotius.
Volume Two : The translation by Francis W. Kelsey with the
collaboration of Arthur E. S. Boak, Henry A. Sanders, Jesse S.
Reeves and Herbert F. Wright and an introduction by James
Brown Scott. Oxford : at the Clarendon Press, 1925. 40.
[Publication of the Carnegie Endowment for International
Peace, Division of International Law. For Volume One see
No. 46, supra.~\
Spanisb
Madrid 1925. Jj. Del Derecho de la Guerra y de la Paz de Hugo Grocio.
Version directa del original Latino por Jaime Torrubiano Ripoll
. . . Editorial Reus (S.A.). Madrid, 1925. 4 v. 160.
Cambridge
1853.
Washington,
London 1901,
Oxford 1925.
INDEXES
NOTE
An attempt has been made to give the full name, date of birth and death or
Jloruit, nationality, and field of labour of each author and the title of each work
referred to by Grotius. The translated title is given first where the English
translation helps to disclose the subject-matter of the work, in which case it is
followed by the original title in parentheses. If the original title is in some other
language than Latin, it is omitted or the Latin title under which it is commonly
cited is substituted. The Loeb Classical Library and the Oxford Classical Texts
have been used to verify the references where available. Otherwise a place and
date is added inside the parentheses to indicate the edition used to verify Grotius's
citations. Where the former were not available and no other edition has been
specified, the reference has not been verified in the original. References to the
authors and works contained in the Corpus Iuris Civilis or the Corpus Iuris
Canonici are listed only under the particular part of the Corpus unless mentioned
specifically by Grotius under their own name. Grotius almost invariably cites
examples in support of his statements ; references to these will be found under
the subject which they exemplify. In the verification of the references and in
the preparation of the indexes, invaluable assistance has been rendered by Mr.
Walter H. Zeydel of the Division of International Law of the Carnegie Endow-
ment.— H. F. W.
\
INDEX OF AUTHORS CITED
Abarbanel, see Abrabanel.
Abbas Panormitanus, see Panormitanus.
Aben-Ezra, or Ibn'Ezra, Abraham-ben-
Meir (1119-c. 1194), Spanish Jewish
exegete, 613.
On Genesis, 371.
On Job, 488.
Abrabanel, Isaac (1437-1508), Spanish
rabbi, 516.
On Deuteronomy, 62.
Abulensis (i.e. of Avila), see Tostado,
Alonso.
Accolti, Francesco (141 8-c. 1485), Italian
canonist, of Arezzo, hence sometimes
cited as Aretinus.
Consilia, 99.
On Sext, 6iy.
Accursius (c. 1 182-1260), Italian glossator.
On Digest, 323.
Achilles Tatius (3d or 4th century), Greek
romance-writer.
On Aratus (Isagoge ad Arati Phaenomena),
311 (bis), 312.
Acominatus, see Nicetas Acominatus.
Acosta, Jose de (c. 1539-1600), Spanish
Jesuit.
On Securing the Salvation of the Indians
(De Procuranda Indorum Salute), 506.
Acron, Helenius (2d century), Roman
grammarian.
On Horace^s Satires, 15.
Acts of the Apostles, see Bible.
Adam of Bremen (nth century), historian.
Ecclesiastical History (Gesta Hamburgen-
sis Ecclesiae Pontificum, vel Historia
Ecclesiastica), 279, 696, 842.
Ado, St. (c. 800-875), Archbishop of Vienne,
85.
Chronicon, 119.
Adrian VI (1459-1523), Pope, Dutch theo-
logian.
Quaestiones Quodlibeticae XII, 195, 592.
Aegidius Regius, see Regius, Aegidius.
Aelian, Claudius (fl. 200), Greek historian,
248.
Various History (Varia Historia, Leipzig,
1887), 38, 144, 169, 233, 449, 450 (bis),
456, 5i3, 5H> 530, 541* 577, 581, 620,
621,657,751,772,796.
History ofAnimals (De Natura Animalium,
Leipzig, 1884), 751.
Aelianus Tacticus (fl. 100), Greek writer on
war.
Tactica, 634.
Aelius Gallus, see Gallus, Aelius.
Aemilius, Paulus, see Emilio, Paolo.
Aeneas Sylvius, see Sylvius, Aeneas.
Aeschines (389-314 b.c), Athenian orator.
Concerning the Badly Conducted Embassy,
528, 653, 665, 667.
Against Ctesiphon, 458, 562.
Aeschylus (525-456 b.c), Greek tragic poet,
458.
Agamemnon, 371.
Choephorae, 231.
Furies, 250.
Persians, 126, 775.
Prometheus Bound, 126, 139, 613.
Suppliants, 107, 108, 246 (bis), 371, 534.
Afflictis, Matthaeus de (1448-15 28), Italian
lawyer.
Decisiones Sacri Regii Consilii Neapolitani,
252, 389.
De Natura Succedendi, 294.
On the Feuds (Commentarius super tres
libros Feudorum), 213.
Agapetus (6th century), deacon of St.
Sophia at Constantinople.
Parainetica, 524.
Agatharchides (2d century b.c), Greek
grammarian, 123.
Agathias (c. 530-c. 582), Greek historian.
Histories (edit. Dindorf, in Historici
Graeci Minores, Leipzig, 1871, vol. ii),
19 (bis), 26, 81, 131, 135, 173, 215,
286, 387, 402, 454*, 462, 483, 487, 519,
521, 546, 548, 556, 564, 654, 665, 698,
722, 728, 734, 743, 752, 773, 787, 816,
855, 857.
Aggenus Urbicus (ist or 2d century), Latin
grammaticus.
Commentary on Frontinus (In Julium
Frontinum Commentarius), 217, 300.
Aguirre, Miguel d' (d. 1588), Spanish juris-
consult.
Apologia pro Successione Regni Portugalliae
pro Philippo Secundo Hisp. Rege, 294,
388.
890
Index of Authors Cited
Aimoin (d. 1008) of Fleury-sur-Loire,
French monk and historian.
History ofthe Franks (Historia Francorum),
114 (bis), 118, 292, 386, 438, 449, 531,
675, 822.
Aimone, see Cravetta, Aimone.
Alberico de Rosate, see Rosate, Alberico de.
Albert of Strassburg (fl. 1349).
Chronicon, 815.
Albertus Argentinensis, see Albert of Strass-
burg.
Alciati, Andrea (1492-1550), Italian lawyer.
Consilia, 429, 847.
On Decretals (Commentaria in Aliquot
Juris Canonici Rubricas et Capitula),
426.
Paradoxa, 565.
Praetermissa, 325.
Responsaf 413, 812.
Aiemanni, Niccolo (1583-1626), Italian
antiquarian.
Procopii Historia Arcana, 224.
Alexander (Alessandro Tartagni, c. 1424-
1477), of Imola, hence called Imolensis,
Italian jurist.
Consilia, 340, 819.
On Decretals (Comm. in Lib. III Decre-
talium), 373.
On Digest, 670.
Alfenus Varus (ist century), Roman jurist.
Digesta, 311 (ter), 312.
Digesta a Paulo Epitomata, 537.
Ambrose, St. (c. 340-397), Bishop of Milan
and Father of the Church, 86, 89, 237,
589.
On Abraham (De Abraham), 237, 238,
612, 685, 781.
Against Auxentius (Sermo contra Auxen-
tium de Basilicis Tradendis), 145.
On Cain and Abel (De Cain et Abel),
554-
On the Death 0} Theodosius (De Obitu
Theodosii Oratio), 387.
Defence of David (Apologia Prophetae
David), 127, 466.
()n Duties (De Officiis Ministrorum), 13,
83, 86, 93 (bis), 142, 162, 177, 202, 203,
204, 276, 277, 347, 353, 357, 367 (bis),
368 (bis), 401, 456, 473, 481, 499, 569,
581, 582, 583, 602, 654, 792, 799, 841
(bis).
Hexaemeron, 199, 211.
Letters (Epistolae), 145 (bis), 247, 250,
370, 473 (bis), 570,618.
On Luke (Expositio Evangelii secundum
Lucam), 93, 96, 785.
On Naboth (De Nabuthe Jezraelita), 211.
On Psalms (Expositio in Psalmos), 466,
481, 483.
On Romans (Commentaria in Epistolam ad
Romanos), 400, 557.
On Tobias (De Tobia), 454.
On Virginity (De Virginitate), 588.
On Virgins (De Virginibus), 460.
Ammianus Marcellinus (d. c. 395), Roman
historian.
History (Res Gestae), 114, 117, 118, 184,
214, 291, 313, 317, 344, 419, 420, 432,
454, 463, 469, 518 (bis), 521, 523, 540,
543, 547, 555, 559, 582, 588, 606, 627,
637, 643, 648, 654, 655, 656, 678, 703
(bis), 722, 724, 730, 732, 785 (bis), 814,
858 (bis).
Amos, see Bible.
Anaxandrides (fl. 376 b.c), Greek comic
poet.
Fragments, 402. See Athenaeus.
Ancharano, Petrus de (c. 13 30-1 41 6),
Italian canonist.
On Sext (Lectura super Sexto), 627.
Andocides (439-c 390 b.c), Attic orator.
Orations (Orationes, Leipzig, 1880), 242,
394, 522-
Andrea, Giovanni d' (d. 1348), Italian
civilist, 217.
Andreae, Joannes, see Andrea, Giovanni d'.
Andronicus (fl. 80 b.c), of Rhodes, hence
called Rhodius, peripatetic philosopher.
On AristotWs Nicomachean Ethics, 43,
131, 361 (bis), 458, 497, 548, 557, 568,
572, 610, 832. _
Angelus de Clavasio (Angelo Carletti, d.
1493), Italian theologian.
Summa Casuum sive Summa Angelica, 225,
359, 556.
Angelus de Ubaldis (1 328-1407), Italian
jurist.
Consilia, 201.
On Code, 712.
On Decretals, 213.
On Digest, 383, 426, 834.
On Institutes, 670.
Anna Comnena (1083-1148), daughter of
Alexis I, Emperor of Constantinople.
Alexiad, 119, 166, 218, 262, 659 (bis),
738, 780.
Anthology, 313.
Anthology, Greek, 460.
Index of Authors Cited
891
Antigonus Carystius (fl. 240 b.c), Greek
Of Sicily, 404.
writer.
Spanish Wars, 615, 648, 750, 794, 800.
Collection of Marvelous Stories (Historia-
Syrian Wars, 216, 243, 669, 730, 830.
rum Mirabilium Collectanea), 241.
Apuleius, Lucius (b. c. 130), Roman writer.
Antiphanes of Rhodes (b. 408 b.c), Greek
Apologia, 297.
comic poet, 498, 585, 665.
On Plato (De Platone et Eius Dogmate),
Antiphon (480-411 b.c), Attic orator.
330, 47°-
Orations, 530, 560.
Aquila Romanus (3d century), Latin rhe-
Antisthenes (b. c. 440 b.c), Greek philo-
torician.
sopher, 511 (bis), 585, 665.
De Figuris Sententiarum, 378.
Antoninus, Emperor, see Aurelius Anto-
Archidiaconus, see Baysio, Guido de.
ninus.
Archiepiscopus Florentinus, see Antoninus,
Antoninus Liberalis (fl. 150), Greek mytho-
St.
logical writer.
Arethas (fl. 914), Archbishop of Caesarea.
Collection oj ' Metamorphoses, 363.
On Revelation (Synopsis Scholastica in
Antoninus, St. (1 389-1459), Archbishop of
Apocalypsim), 187.
Florence, hence called Archiepiscopus
Aretinus, Franciscus, see Accolti, Francesco.
Florentinus.
Argentre, Bertrand d' (15 19-1590), French
Summa theologica, 333, 397, 506.
jurist.
Apocalypse, see Bible.
Histoire de Bretagne, 285.
Apocrypha, see Bible.
Arias de Valderas, Franciscus (fl. 1533),
Apollodorus (b. c. 140 b.c), Greek gram-
Spanish jurist.
marian.
De Bello et Eius lustitia (in Tractatus
Library, 58, 117 (bis), 175, 178, 197, 207
Illustrium . . . Iurisconsultorum, vol. xvi,
(bis), 249, 259, 273, 283 (bis), 498, 532,
Venice, 1584), 22, 401, 686.
580.
Aristides, Aelius (b. c. 117), Greek sophist
Apollonius Rhodius (fl. 196 b.c), Greek
and rhetorician, 213, 569.
epic poet.
On the Alliance, 556.
Argonautic Expedition (Argonautica), 249,
On Concord, 559, 632.
560, 622.
For the Four, see Platonic.
Apollonius of Tyana (ist century), Pytha-
On Leuctra, 185, 404, 474, 494, 499, 531,
gorean philosopher, see Philostratus.
722, 728, 730, 792, 820.
Apostolic Canons, see Canons, Apostolic.
Panathenaic, 215, 450, 451, 505, 531.
Appian of Alexandria (2d century), Greek
On Peace, 474, 572, 575, 723, 738, 741.
historian, 396, 691, 698.
Platonic, 473, 562, 574.
Civil Wars, 19 (bis), 100, 118, 122, 136,
In Praise of Rome, 774.
162, 170, 174, 249, 356, 364, 373, 449,
Sicilian, 573.
454> 546> 659> 67°> 672 (bis), 67^ (bis),
Aristophanes (b. c. 444 b.c), Greek comic
686 (bis), 752, 760, 792, 812, 826, 835,
poet.
858.
Acharnians, 380.
Gallic History, 449, 527 (bis), 858.
Birds, 198, 200, 247, 370.
Hannibalic Wars, 649.
Clouds, 380.
Illyrian Wars, 216, 445, 632, 850.
Frogs, 161, 602.
Concerning Italy, 68 1 .
Knights, 602.
Macedonian Affairs, 395, 446, 533, 819.
Aristotle (384-322 b.c), Greek philosopher,
Mithridatic Wars, 118 (bis), 131, 213,
17, 270, 352.
280, 428, 456, 527, 546, 590, 630, 657,
(Unless otherwise noted, references have
659 (bis), 669 (bis), 680 (bis), 709,
been verified in Opera Omnia, ed.
733,758» 77*> 775.
Didot, Paris, 1 848-1 857.)
Numidian Affairs, 688.
Analytics (Analytica Posteriora), 172.
Preface, 104, 213, 774.
De Caelo, 512.
Punic Wars, 418, 447, 455, 655, 682, 733,
Economics, 353, 626, 628, 750, 766.
740,754,779,811,825,852.
Eudemian Ethics, 43.
Samnite History, 215, 406 (bis), 854.
On Generation and Decay, 191.
892
Index of Authors Cited
Aristotle (continued)
History 0/ Animals, 241.
On Interpretation, 608.
Magna Moralia, 425, 499, 557.
Metaphysics, 835.
De Mirabilibus Auscultationibus, 241.
Ov the Movement of Animals, 572.
Nicomacbean Ethics, 14, 35, 36 (bis), 37
(bis), 38, 40, 42, 102, 140, 165, 231
(bis), 234, 252, 253, 271, 275, 276, 334,
345, 35i, 358, 401, 431, 449 (bis), 458,
469, 495, 498 (bis), 508, 547 (bis), 557
(bis), 558, 565, 566, 570, 591, 610 (bis),
620, 725, 728, 770, 793, 814, 832 (bis) ;
see also Andronicus of Rhodes and
Michael of Ephesus.
On the Parts of Animals, 53.
Politics (ed. Jowett, Oxford, 1885), 17,
29, 44, 101, 102 (bis), 103 (bis), 105,
107, 108, 112, 113, 125, 126, 133, 231,
250 (bis), 253, 265, 311, 312, 313, 314-
15, 315, 345, 353, 359, 380, 394, 465,
467, 506, 509, 510, 535, 551, 552, 593,
632,665, 666, 698, 718, 722, 761, 770,
774 (bis), 842 (bis), 861 (bis).
Problems, 151, 250, 500, 559, 564.
Rhetoric, 260, 329, 343, 469, 522, 548,
565, 566, 725, 727, 824, 860.
Rhetoric to Alexander, 164, 277, 567, 861,
862.
Rights ofWar, 22.
On Sleep and Vigil, 833.
Sophistical Refutations, 693.
Topics, 43, 491, 512 (bis), 559, 566.
Arnobius (d. c. 327), African rhetorician.
Against the Heathen (Adversus Gentes),
71,241,356,518,524,637.
Arnold of Liibeck (d. 121 2), German Bene-
dictine, continuator of Helmold.
Derelictorum Helmoldi Supplementum, 652.
Arrian (Flavius Arrianus, fl. 136), Greek
historian.
Anabasis of Alexander (edit. Abicht,
Leipzig, 1889), 128, 170, 279, 403,
445-^> 536 (bis), 620 (bis), 648, 657,
725, 739, 741, 744, 7^-
Epictetus (edit. Hercher, Leipzig, 1885),
40, 789.
Indtca (edit. Hercher, Leipzig, 1885),
115.
Arrianus (2d century), Roman jurist, 247.
Artemidorus the Daldian (fl. 160), Greek
dream-interpreter.
Oneirocritica, 235.
Arumaeus, Dominicus (1579-1637), Dutch
jurist.
Discourses on the Golden Bull (Discvrsus
Academici ad Bullam Auream Caroli
IV Imperatoris), 805.
Aschaffenburg, see Lambert von Aschaffen-
burg.
Asconius Pedianus, Quintus (c. 3-c. 88),
Roman commentator.
On Ciceroys Against Verres, 589, 661, 673,
679.
On Cicero^s For Milo, 251.
Aspilcueta, Martin, see Navarrus.
Asterius (c. 340-c. 410), Bishop of Ama-
sea.
Homilies, 507.
Athanasius, St. (c. 293-373), Greek Father
of the Church.
Letter to the Monks, 517, 520, 552.
Synopsis of Holy Scriptures (Synopsis 5.
Scripturae), 50.
Athenaeus (fl. 200), Greek antiquary.
Banquet of the Learned, 237, 255 (bis),
256, 402, 765.
Athenagoras (fl. 177), Greek philosopher.
Apology for the Christians (Legatio pro
Christianis), 83.
Attaliates, Michael (nth century), Byzan-
tine statesman and historian.
Pragmatica, 211.
Synopsis, 209, 272.
Auctor Imperfectus (6th century), Latin
Arian.
On Matthew (work appeared erroneously
under the name of St. John Chryso-
stom), 400.
Augustine, St. (354-430), Latin Father of
the Church, 93, 718.
Against the Academics (Contra Aca-
demicos), 491.
Against Adimantus (Contra Adimantum),
412.
De Bono Conjugali, 248, 368.
On Christian Doctrine (De Doctrina
Christiana), 12, 15, 36, 234 (ter), 277,
563, 608.
On the City ofGod (De Civitate Det), 1 1 1 ,
141, 154, 170, 204, 235, 239, 244, 246,
262, 351, 460 (bis), 486, 506, 521, 548
(bis), 556, 557, 565 (bis), 574, 576, 577,
59°, 59i, 631, 632, 633, 65°, ^S7> 66*i
753, 765, 77*:
Contra Cresconium Grammaticum, 64.
Confessions (Confessiones), 25 (bis), 139.
Index of Authors Cited
893
Augustine, St. (continued)
De Conjugiis Adulterinis ad Pollentium,
481, 642 (ter).
On the Customs oftbe Catholic Church (De
Moribus Ecclesiae Catholicae), 622, 765.
Enchiridium, 470, 611, 614.
Contra Epistolam Manichaei, 520.
Evangelical Questions (Quaestiones Evan-
geliorum), 482.
Expositio Quarundam Propositionum ex
Epistola ad Romanos, 146.
On Faith and Works (De Fide et Operibus),
83, 248, 320.
Against Faustus (Contra Faustum Mani-
chaeum), 69, 98, 237, 556, 591, 642.
On Free Will (De Libero Arbitrio), 93, 175,
182, 464, 584, 591.
Against Gaudentius (Contra Gaudentium),
460.
Questions on Heptateuch (Quaestiones in
Heptateuchum), 96, 154, 172, 197 (bis),
475, 523, 534, 6o6, 6o7, 6l8 (bis)-
On the Gospel of John (In Joannis Evan-
gelium), 147, 553.
Letters (Epistolae), 25 (bis), 64, 68 (ter),
76, 77, 86, 93, 154, 231, 327, 357, 364
(bis), 372, 373, 376, 460, 484 (bis), 501
(ter), 501-2, 518, 519, 538, 539, 568,
569, 576> 588, 59°> 599 (bis), ^01, 6l3,
718, 719, 737, 742> 792 (bis), 86r-
Against Lying to Consentius (Contra Men-
dacium ad Consentium), 607, 618.
On Lying (De Mendacio), 610 (ter).
De Magistro, 619.
On Order (De Ordine), 558.
Against Petilianus (De Unico Baptismo
contra Petilianum), 489.
Principles of Rhetoric (Principia Rhe-
torices), 410.
On Psalms (Enarrationes in Psalmos), 154,
352, 479, 524> 6l7-
Questions on the Old and New Testaments
(Quaestiones Veteris et Novi Testa-
menti), 492.
De Rebus in Arelatensi Concilio Gestis, 82.
Retractions (Retractiones), 463.
On the Sermon of Our Lord on the Mount
(De Sermone Domini in Monte), 76.
Sermones, 86, 147 (bis), 269, 270, 320, 372,
522 (ter), 586, 611,785.
On the True Religion (De Vera Religione),
25> 497-
On the Utility of Belief (De Utilitate
Credendt), 519.
Aulus Gellius, see Gellius, Aulus.
Aurelius Antoninus, Marcus (1 21-180),
Roman Emperor, commonly called
Marcus Aurelius, the Philosopher, 249,
540.
Meditations, II, 12 (ter), 14, 16 (ter), 18,
38-9, 379> 495> 498> 52*, 53°.
Aurelius Victor, Sextus (fl. 350), Roman
historian, 460.
On the Caesars (De Caesaribus), 388.
Epitome de Caesaribus, III, 145, 246,
562.
On Famous Men (De Viris Illustribus
Urbis Romanae), 281, 407, 655, 676.
Origo Gentis Romanae, 287.
Ausonius, Decimus Magnus (c. 309-394),
Latin poet.
Cupido Cruciatur, 722.
Technopaegnion, 538.
Authenticum, see Corpus Iuris Civilis :
Novels.
Averroes, or Ibn-Roshd (d. 1198), Arabian
philosopher.
Commentary on AristotWs Metaphysics,
146.
Ayala, Balthazar de (c. 1548-15 84), Spanish
jurist.
De Iure et Officiis Bellicis et Disciplina
Militari, 22, 23, 98, 551, 553, 639.
Aymo, see Cravetta, Aimone.
Aymoinus, see Aimoin.
Aymus, Baptista (fl. 1570), Italian jurist.
De Alluvionum Iure Universo, 229.
Azor, Juan (15 3 3-1 603), Spanish Jesuit and
theologian, 506.
Moral Institutes (Institutiones Morales),
i58> 375, 552-
Azpilcueta, Martin, see Navarrus.
Baba Kama, a Talmudic treatise, 273, 329,
369, 393, 434, 544-
Balbus, Joannes Franciscus (fl. 15 10), jurist.
De Praescriptionibus, 224, 228.
Baldus deUbaldis (1 327-1400), Italianpost-
glossator, 213, 428.
On Code (Commentarius in Codicis Libros
Novem Priores), 171, 172, 175 (bis),
252, 333, 384, 638-
Consilia, 197, 261, 592, 626, 652.
On Decretals (Commentarius in Decretales),
261, 288.
On Digest (Commentarius in Digesta), 137,
184, 213, 326, 331, 348, 383, 384, 385,
628, 646.
894
Index of Authors Cited
Baldus de Ubaldis [continued)
On Feuds (Lectura super Libros Feudorum),
3°3-
De Statutis, 835.
Balsamon, Theodore (fl. 1193), Greek
canonist.
On Photius1 Nomocanon, 87, 215 (bis), 326,
484.
Banez or Bannez, Domingo (1 528-1604),
Spanish Jesuit and theologian.
On II. ii (Scholastica Commentaria in
Secundam Secundae Thomae Aquinatis),
173, I75s593,694.
Barbatia, Andreas (c. 1400-1479), Italian
canonist.
Consilia, 415.
Barclay, William (c. 1540-1606), Scotch
jurist.
De Regno et Regali Potestate . . . adversus
Monarchomachos, 150 (bis), 157.
Barnabas, see Bible.
Bartolus of Sassoferrato (1 3 1 3-1 357), Italian
jurist, 213.
On Code (Commentarius in Libros IX
Codicis Priores), 428.
On Digest (Commentarius in Tria Digesta),
98 (bis), 165 (bis), 172, 228 (bis), 252
(bis), 264, 341, 385, 414, 551, 670, 696
(bis), 712, 758, 835 (ter), 851.
On Reprisals (De Represaliis), 98, 268,
626, 628, 629.
Tyberiad (Tractatus de Fluminibus seu
Tyberiadis), 299.
Basil I (c. 820-886), surnamed the Mace-
donian, Emperor of the East.
Paraeneticon ad Leonem Filium, 488.
Basil, St. (c. 329-379), commonly called
Basil the Great, Bishop of Caesarea, 90.
Hexaemeron (Homiliae Novem in Hexae-
meron), 199.
Homilies on Psalms (Homiliae in Psalmos),
357-
Letters to Amphilochius (Epistolae Cano-
nicae ad Amphilochium, 94, 247, 367,
577-
Basihca, Greek code of law, 210 (bis).
Batrachomyomachia (Battle of the Frogs and
Mice), an epic poem falsely attributed
to Homer, probably written by Pigres,
Bavarian Law, see Law of the Bavarians.
Baysio, Guido de (fl. 1290), cited as Archi-
diaconus, Italian canonist.
On Decretum (Rosarium Decretorum), 835.
Bede, Venerable (c. 674-735), English his-
torian and commentator.
Ecclesiastical History (Historia Ecclesias-
tica Gentis Anglorum), 287, 517, 594,
734-
On Galatians, 568.
Bellay, Martin du (d. 1559), French his-
torian.
Historic Memoirs from 1513 to 1547
(Memoires), 441.
Belli, Pierino (1 502-1 575), Italian jurist,
sometimes cited as Bellini.
De Re Militari et de Bello, 585, 686.
Belluga, Pedro (i^th century), Spanish
jurist.
Speculum Principis, 263, 390.
Belvisio, Jacobus de (c. 1 270-1 335), Italian
civilist.
On Authenticum (Casus Breves in Authen-
ticum), 627.
Bembo, Pietro (1470-1547), Italian car-
dinal and scholar.
History of Venice (Historia Veneta), 104,
119, 192, 198, 199, 254, 636, 646, 647,
652, 659, 694, 731,749, 757, 823.
Ben Gerson, see Gersonides.
Ben-Israel, see Manasses Ben-Joseph-Ben-
Israel.
Benjamin of Tudela (i2th century), French
rabbi.
Itinerary, 752.
Bernard, St. (1 090-1 153), of Clairvaux,
French ecclesiastic.
Letters (Epistolae), 553.
Bertachinus, see Firmanus.
Bezarrus, see Bizarri.
Bible: Old Testament :
Genesis, 35, 40, 41, 54, 57, 58, 59 (bis),
60, 186, 188, 189 (bis), 239, 244 (bis),
265, 274 (bis), 336, 365, 370, 371, 372,
397 (bis), 399, 45^, 459, 515, 538, 593,
601, 607, 613, 663 (quater), 780, 781.
Exodus, 37, 46, 48, 55, 56, 60, 62 (quin-
quies),7l, 76, 77,92, 103,127,151,180,
233, 247, 250, 251, 351, 365, 366, 372,
422, 478, 481, 482, 498, 499, 500, 530,
541 (bis), 764 (ter).
Leviticus, 37, 46 (bis), 60 (bis), 62 (ter), 75
(bis), 235, 242, 243, 246, 349, 365, 369,
372, 398, 432, 456, 478, 493, 515, 785.
Numbers, 46, 48, 60, 62 (bis), j6, 197, 222,
232, 233 (bis), 240, 276, 331, 365, 369,
4°9, 457, 459, 475, 477, 482, 57°, S77>
664, 685, 719, 734, 783.
Index of Authors Cited
895
Bible : Old Testament (continued)
Deuteronomy, 45, 46 (bis), 55, 62 (quater),
95, 107 (bis), 127, 140 (bis), 151, 181,
235 (ter), 240, 266, 277 (bis), 320, 366
(ter), 397 (ter), 398, 399 (bis), 400, 401,
457, 464, 467, 477, 482, 499 (bis), 511,
515 (ter), 530 (bis), 542, 577, 594, 635,
648 (bis), 657, 661, 664, 695, 728, 734,
742, 746, 762 (bis), 763, 764, 767, 768.
Joshua, 117, 140, 365, 366 (quater), 367,
400, 541, 578, 609, 664, 748.
Judges, 55, 75, 162, 205, 220, 399, 473,
527 (bis), 632, 668.
1 Samuel or 1 Kings, 55, 107 (quater),
• 115, H°> H7, 150 (bis)> *Sh lS2, 225,
327, 368, 399 (bis), 459, 588, 594, 608,
618, 664, 668, 677, 685, 736 (bis).
2 Samuel or 2 Kings, 55, 107, 115, 235,
367, 398> 399 (bis)> 400> 449> 457> 54J>
570, 686.
1 Kings or 3 Kings, 46, 107, 111,115,116,
117, 200, 365, 367, 386, 398, 399 (bis),
400,453,530,541,588,617.
2 Kings or 4 Kings, III, 163, 185, 365,
371 (bis), 401, 441, 530, 541, 542, 588,
594, 618 (bis), 668, 738, 748.
1 Chronicles or Paralipomenon, 127, 577,
664.
2 Chronicles or Paralipomenon, 117, 122
(bis), 127 (bis), 161, 286, 400 (quin-
quies), 573, 664.
Nehemiah or 2 Esdras, 162, 331.
Judith, 95 (bis), 244.
Job, 60, 269, 365, 378, 452, 459, 515,
785.
Psalms, 45, 49, 60, 62, 64, 107, 127 (bis),
356 (bis), 365, 374, 466, 610, 648, 785.
Proverbs, 60, 75, 187, 277, 331, 384, 401
(quater), 467, 495, 563, 610 (bis), 785
(ter).
Ecclesiastes, 188, 452, 785.
Song o/Songs or Canticle of Canticles, 371.
Wisdom, 187, 360, 371, 491.
Ecclesiasticus or Son of Sirach, 187 (bis),
266, 762, 765.
Isaiah, 40, 70, 74, 96, 278, 365 (bis), 400,
401, 467, 719.
Jeremiah, 40, 74, 110, 128, 181, 365, 373,
454> 573> 607.
Ezekiel, 40, 235, 356, 373, 496, 542.
Daniel, 122, 134, 365 (ter), 543, 555, 661.
Hosea, 365 (bis).
Amos, 771.
Jonah, 76, 365 (bis), 719, 734.
1569-27 3
Micah, 40, 504.
Habakkuk, 365.
Zachariah, 362.
1 Maccabees, 107, 148, 384, 399 (ter), 477
(bis), 651, 661 (bis).
2 Maccabees, 46, 460, 684, 685.
3 Maccabees, 478.
Bible : New Testament :
Matthew, 46, 61, 65 (bis), 66 (quinquies),
67, 71 (bis), 72 (bis), 73, 75 (bis), 76
(bis), 93 (bis), 95, 156, 163, 235 (bis),
298, 312, 366, 369, 371 (bis), 377, 378,
384, 401, 403, 479, 480, 481, 482, 486,
508, 517 (bis), 553, 601, 612 (bis), 620
(bis), 841.
Mark, 66 (ter), 312, 471, 504, 517, 608.
Luke, 65, 66 (sexties), 76, 94, 95 (bis), 107,
128, 156, 354, 459, 464, 481, 493, 508,
517 (ter), 552, 571, 608, 612, 785 (bis).
John, 46, 66, 81, 95 (bis), 312 (bis), 398
(bis), 465, 517, 553, 612 (bis).
Acts of the Apostles, 46 (ter), 48, 64 (bis),
65 (bis), 66 (bis), 67 (bis), 68, 69 (bis),
71, 312 (bis), 398, 478 (bis), 482 (bis),
515,587,608,612.
Romans, 40 (bis), 47, 49, 50, 62 (bis), 64
(bis), 69, 76 (ter), 93 (bis), 95, 96, 141,
H7, 377 (bis)> 432, 466> 482> 497> 5*5,
517, 557 (bis), 567, 861.
1 Corinthians, 69, 72, 76, 235, 238, 242,
257> 331 (bis)> 36o> 402> 4°3, 482 (bis),
551,553,586,641,719,824.
2 Corinthians, 73, 78, 187, 272, 377 (bis),
378 (bis), 402, 482, 483.
Galatians, 48, 50, 208, 401, 517, 520, 615.
Ephesians, 48, 69, 78, 234, 242, 257, 360,
481, 569, 587 (bis), 588, 762, 765.
Philippians, 69, 377.
Colossians, 257, 481, 610, 762.
1 Thessalonians, 95, 331, 377.
2 Thessalonians, 95, 331, 402.
1 Timothy, 63, 73, 76, 369, 377, 493, 554.
2 Timothy, 68, 331.
Titus, 187, 258.
Hebrews, 50 (bis), 55, 62 (bis), 64, 331
(bis), 365 (bis), 372, 399, 482 (ter), 493
(bis), 513, 517, 663.
James, 78, 79, 378, 494.
1 Peter, 69, 95, 143, 147, 149, 153, 156,
258, 595-
17^,61,96,471,495.
Revelation or Apocalypse, 69, 96, 187
(bis), 378,498, 595..
Barnabas, 762.
896
Index oj Authors Cited
Bizarri, Pietro (fl. 1550), Italian historian.
Buchanan, George (1506-1582), Scotch
History of Genoa (Senatus Populique
historian.
Genuensis Rerum Domi Forisque Ges-
History of Scotland (Rerum Scoticarum
tarum Historiae atque Annales, Ant-
Historia), 263.
werp, 1629), 105, 115, 158, 163, 403
Burchard (d. 1025), of Worms, German
(bis), 445, 543, 562, 635, 700, 820, 855
theologian.
(bis).
Canonum Volumen, 481.
On the Ptsan Jf ar (De Bello Pisano, Ant-
BurgundianLaw, seeLazv of the Burgundians.
werp, 1629), 119,647.
Busbecq, Ogier Ghislain de (1522-1592),
On the Venetian W ar (De Bello Veneto,
Flemish scholar.
Antwerp, 1629), 704.
Epistolae Exoticae, 344, 696.
Bocer,Henry(i6thcentury),Germanjurist.
Letters of the Turkish Embassy (Epistolae
De Collectis, 426.
Turcicae Legationis IV), 255.
Bodin, Jean (1530-1596), French political
Butrio, Antonio de (c. 1 338-1409), Italian
writer.
canonist.
On the Republic (De Republica, Frank-
On Decretals (Commentaria in Quinque
fort, 1609), 29, 228, 267 (bis), 381, 382,
Libros Decretalium), 252.
384, 389, 419, 436, 500, 696, 714.
Boerius, see Bohier.
Cabedo de Vasconcellos, Jorge (1559-1604),
Boethius, Anicius Manlius Severinus (c.
Portuguese jurist.
480-524), Roman philosopher.
Decisiones Lusitaniae Senatus, 298, 604.
Arithmetic (Institutio Aritmetica), 311.
Cacheranus, Octavianus (fl. 1590), Italian
On Cicercfs Topics (In Ciceronis Topica),
jurist.
309, 701, 712.
Decisiones Sacri Senatus Pedemontani, 102,
On Geometry, 300.
213, 420.
Bohier, Nicolas de (1469-1539), French
Caecilius Statius (d. c. 166 b.c), Latin
jurist.
comic poet.
Decisions (Decisiones in Senatu Burd.iga.len-
Fallacia, 74.
sium Discussae ac Promulgatae), 252,
Caepolla, Bartholomaeus (d. 1474), Italian
659, 696 (ter).
jurist, 213.
On Decretum, 124.
Consilia, 405, 817.
Bonfini, Antonio (1427-1502), Italian lit-
OnDigest, 341.
terateur.
De Servitutibus Rusticorum Praediorumt
History of Hungary (Rerum Ungaricarum
301.
Decades), 159, 684.
Caesar, Gaius Julius (100-44 B«c0» Roman
Boreo, 'John (Johann Borcholten, 1535-
historian.
1593, German jurist, or Vincentius
Civil War (De Bello Civili), 375, 440,
Boreus ?), 299.
644, 794, 845, 862.
Bossius, Aegidius (1488-1546), jurist.
Gallic War (De Bello Gallico), 112, 135
De Aquis et Fluminibus, 213.
(bis), 198, 204, 214, 393, 632, 645, 697,
Practica Criminalia, 659.
739, 746, 858.
Bridget, St. (1 302-1 373), of Sweden.
Cajetan, Cardinal (Thomas de Vio, 1469-
Revelationes Brigittae, 267, 280.
1534), Italian theologian, 397.
Brocardus, see Burchard.
On II. ii (Commentarium in S. Thomae
Brodeau, Jean (1 500-1 563), French com-
Summam Theologicam), 99, 173, 269,
mentator.
299, 322, 326, 327, 336, 369, 373, 401,
cellanea, 752.
43i, 433, 465, 556, 563, 575> 58i, 618,
Bruning, Johann (i7th century), German
633, 821 (bis).
jurist.
On Matthew (Commentarii in Evangelia),
De Homagiis Subiectivis, 778.
244.
Brutus, Junius (Pseud. of Hubert Languet,
Summula Percatorum, 757.
1518-1581), French Protestant poli-
Calderinus, Joannes (d. 1365), Italian
tical writer.
canonist.
V indiciae contra Tyrannos, 1 |
Consilia, 1
Index of Autkors Cited
897
Callistratus (2d century b.c), Alexandrian
grammarian.
On Aristophanes, 765.
Callistratus (fl. 200), Roman jurist.
De Cognitionibus (in the Digest), 542.
Camden, William (1551-1623), English an-
tiquary and historian.
Annals of the Reign of Elizabeth (Annales
Rerum Anglicarum et Hibernicarum
Regnante Elizabetha), .210, 214, 289,
387, 389, 419, 427, 440, 443, 445, 527,
533 (bis), 604 (quater), 605, 734, 845.
de la Canaye, Philippe, Sieur du Fresne
(1551-1610), French statesman and
diplomatist.
Letters (Memoires ou Recueil de Lettres),
447, 713.
Canibus, Joannes Jacobus de (d. c. 1494),
Italian jurist.
On Sext, 627.
Canon Law, see Canons, Apostolic ; Corpus
Iuris Canonici ; Council ; Synod.
Canons, Apostolic, 88, 96, 245.
Canticle of Canticles, see Bible.
Capitolinus, Julius (3d or 4th century),
Latin biographer, 65, 316.
Albinus {Vita Clodii Albini), 316.
Macrinus (Opellius Macrinus), 317.
Marcus Antoninus the Philosopher (Marcus
Antoninus Philosophus), 116, 451, 501,
535, 739-
Maximus and Balbinus (Maximus et Bal-
binus), 774.
Maximini (Maximini Duo), 317.
Pertinax (Helvius Pertinax), 388, 724.
Capitularies of the Franks (Capitularia
Francica), 248, 460 (bis) ; see also
Charlemagne ; Charles the Bald ;
Louis the Pious.
Cardinal, see Zabarella, Francesco.
Carletti, Angelo, see Angelus de Clavasio.
Carneades (c. 215-129 b.c), Greek philo-
sopher, founder of the New Academy,
10, 15 (ter), 347.
Carthagena, Joannes de (d. 1617), Spanish
theologian.
Propugnaculum Catholicum de Jure Belli
Romani Pontificis adversus Ecclesiae
Jura Violantes, 22, 399.
Cassian, John (c. 361-c. 435), monk and
theologian, 610.
Cassiodorus, Senator, Flavius Magnus
Aurelius (c. 470-c. 570), Latin his-
torian.
Chronica, 280.
On Friendship, see Peter of Blois.
Institute of Holy Writ and On Dialectic
(Institutiones Divinarum et Saecularium
Litterarum), 27, 37.
On the Soul (De Anima), 53.
Variae, 12, 87, 91, 110 (bis), 111, 120,
121, 127, 171 (ter), 203, 211, 239, 246,
247, 257, 260, 267, 299 (bis), 302, 322,
353 (ter), 437, 466, 474, 475, 501, 517,
533, 554, 56i, 563, 623, 659, 709, 724,
731, 750, 753, 784 (quater), 785 (ter).
Cassius Dio, see Dio Cassius Cocceianus.
Cassius Longinus, Lucius (fl. 110 b.c),
Roman judge, cited by Aggenus Urbi-
cus, 300.
Castaldus, Restaurus (d. 1564), Italian
civilist.
Tractatus de Imperatore, 228, 384.
Castrensis, Paulus (d. c. 1441), Italian jurist.
Consilia, 385.
On Code, 428.
On Digest, 165, 185 (?), 326, 592, 849.
Castro, Alphonsus de (1495—1558), Spanish
Franciscan theologian.
De Potestate Legis Poenalis, 387, 565.
Cato, Marcus Porcius, surnamed Censorius
(234-149 b.c), Roman statesman, 356.
Origins (De Originibus), 202, 800.
On Farming (De Re Rustica), j66.
Cedrenus, Georgius (nth century), Greek
monk.
Histories (Synopsis Historiarum), 121, 299.
Celsus, Aurelius Cornelius (ist century),
Latin writer on medicine.
De Medicina, 194.
Celsus, Publius Juventius (2d century),
Roman jurist, cited in Digest, 209, 210
(bis), 622, 66y, 672, 823.
Chalcocondylas, Laonicus (fl. 1450), Byzan-
tine historian.
Histories (Historiae, ed. Bekker, Bonn,
1843), 114, 118 (ter), 119, 128 (ter),
129, 528, 639, 647, 650, 685, 697, 721,
738.
Charlemagne (742-814), King of France
and Emperor of the West.
Capitularies (Capitula), 180, 785.
Supplement to Bavarian Law (Addita-
mentum ad Legem B aioariorum) , 736.
Charles the Bald (823-877), King of France.
Capitularies (Capitula), 88, 119, 144, 166,
200, 318 (bis), 525, 563, 564, 764.
Edictum Pistense, 257, 306, 708.
302
898
Index of Authors Cited
Charondas (fl. 650 b.c), Greek legislator,
449-
Chassaneus (Chasseneux), Barthelemy de
(1480-1541), French jurist and states-
man.
Catalogus Gloriae Mundi, 228, 422, 552,
805.
Consuetudines Ducatus Burgundiae acfere
Totius Galliae, nj.
Chifflet, Jules (d. c.1670), French historian.
Le Voyage de Prince Don Fernand Infant
d'Espagne (}), 301.
Choniates, Nicetas, see Nicetas Acomina-
tus.
Choppin, Rene (15 37-1 606), French lawyer
and antiquarian.
De Domanio Franciae, 201, 291.
Christian VVriter, see Pseudo-Justin Martyr.
Chronicles, see Bible.
Chrysippus (280-208 b.c), Stoic philo-
sopher, 14, 189, 240, 372 (bis), 420,
509,762.
Chrvsostom, Dio, see Dio Chrysostom.
Chrysostom, St. John (344-407), Greek
Father of the Church, 438, 610.
On Alms (De Eleemosyna Sermo), 1 36, 862.
Against Those Who Anathematize (De
I Anathematizandis Vivis vel De-
functis), 520.
On the Acts of the Apostles (Commentarius
in Acta Apostolorum), 554.
To the Believing Father (Ad Patrem
Fidelem), 66, 81, 482.
That Christ is God (Adversus Judaeos et
Gentiles Demonstratio), 43, 70.
On First Corinthians (Homiliae XLIV in
Epistolam Primam ad Corinthios), 14,
34, 46, 50, 70, 76 (bis), 80, 147, 231,
234» 239, 320, 326, 357, 469, 483, 5*9,
588, 609 (bis), 642.
On Second Corinthians (In Secundam ad
Corinthios Epistolam Commentarius),
. 73, 74, 78, 47i, 476, 495, 497, 522.
On the Devil as Tempter (De Diabolo
Tentatore), 50.
On the Earthquake (In Terrae Motum et
in Divitem et Lazarum), 464.
On Ephesians, 11, 17, 50, 142, 231 (bis),
306, 476, 479, 495, 521, 554, 557, 587,
766.
On Fasttng (Septem Sermones de Jejunto),
50, 357-
That Faults are the Result of Neglect, see
On the Devil as Tempter.
On Galatians (In Epistolam ad Galatas
Commentarius), 460, 497, 519, 538, 615.
On Genesis, 541.
On Gentleness (De Clementia), 569.
Against the Jews (Adversus Judaeus
Orationes), 76, 144, 484, 522.
Commentary on John (Commentarius in
Sanctum Joannem Apostolum et Evan-
gelistam), 349, 517.
On Lazarus, see On the Earthquake.
On Matthew, 483.
On the Obscurity of the Prophecies (De
Prophetiarum Obscuritate), 494.
On Penitence (De Poenitentia), 464, 482,
486, 617, 642 (bis).
Praise of St. Eustathius (Laudatio S.
Patris Nostri Eustathii Antiochiae
Magnae Archiepiscopi), 508.
On the Priesthood (De Sacerdotio), 497,
554 (ter), 606, 607, 609, 612, 617, 618.
On Providence (De Fato et Providentia),
498, 590, 727.
On Romans (Commentarius in Epistolam
ad Romanos), II, 41, 46 (bis), 47 (ter),
49, 50 (bis), 65, 74, 76, 141, 142, 495,
497 (bis), 504 (bis), 522, 642.
That the Son Is Equal to the Father (Contra
Anomoeanos), 63.
To Stagirius (Ad Stagirium de Tristitia),
449-
On the Statues (Homihae XXI de Statuis),
39, 42, 43, 46, 53, 74, 86, x42 (bis), 362,
379 (ter), 493, 494, 522, 523, 525 (bis),
535, 568, 569-
To Stelechius (Ad Stelechium de Compunc-
tione), 199.
On First Thessalonians, 554.
On First Timothy (In Epistolam Primam
ad Timotheum Commentarius), 152, 234,
277.
On Second Timothy (In Epistolam Srcun-
dam ad Timotheum Commentarius), 144.
On Titus (In Epistolam ad Titum Com-
mentarius), 554.
To the Unbelieving Father (Ad Infidelem
Patrem), 587.
On Virginity (De Virginitatc), 49, 63.
Chytraeus, David (1530-1600), German
Protestant theologian and historian.
History of Saxony (Chronicon Saxoniae),
159.
Cicero, Marcus Tullius (106-43 b.c),
Roman philosopher and orator, 159,
356, 491, 53i, 582-
Index of Authors Cited
899
Cicero (continued)
Academics (Academicae Quaestiones), 410,
515.
On the Agrarian Law against Rullus (De
Lege Agraria contra P. Servilium Rul-
lum), 118, 119, 225, 314, 665.
For Balbus (Pro L. Cornelio Balbo), 9, 254,
379, 380, 408, 643, 797.
Brutus, 422 (bis), 800.
For Caecina (Pro A. Caecina), 259, 412,
414, 422 (quater), 467, 529.
For Cluentius (Pro A. Cluentio), 144, 242,
558, 742-
On the Commonwealth (De Repubhca), 39,
129,170,631.
On the Consular Provinces (De Provinciis
Consularibus), 126, 460.
For King Deiotarus (Pro Rege Deiotaro),
225,380,645,731.
On Divination (De Divinatione), 754.
On Duties (De Officiis), 17, 33, 34, 36, 39,
41, 54 (bis), 105, 110, 131, 164, 173,
189 (bis), 190 (bis), 195, 196, 220, 221,
225, 275, 276, 277 (quater), 300, 321,
322, 328, 330, 332, 347, 348 (quater),
350, 362 (bis), 363, 364 (bis), 368, 373
(ter), 374, 398, 409, 410, 426 (bis), 436,
445, 480, 503, 548, 558 (bis), 560, 562,
570 (bis), 572, 582 (bis), 607, 613, 614,
633, 652, 658, 665, 717 (bis), 722 (bis),
1*1, 730, 733 (bis), 739, 748, 765, 769,
770 (bis), 782, 788, 793 (bis), 794 (bis),
799, 805, 811, 812, 851, 853, 855,
860.
On Ends (De Finibus Bonorum et Ma-
lorum), 51, 80, 170, 186, 277, 509, 580,
582,631,708,792.
For Flaccus (Pro L. Flacco), 661.
For Gabinius (Pro A. Gabinio), 819,
862.
On His House (De Domo Sua), 672, 747.
On Invention (De Inventione), 422, 427,
453,472,514,530,574,680,837.
On Laws (De Legibus), 104, 1 15, 452, 453,
Letters to Atticus (Epistulae ad Atticum),
162, 573 (bis), 575, 749 (ter), 759, 775
(bis), 777.
Letters to Brutus (Epistulae ad M.
Brutum), 494, 524, 537, 700, 731.
Letters to Friends (Epistulae adFamiliares),
14, 17, 54, 115, 162, 251, 358, 607, 632,
6j6, 861.
Letters to his Brother Quintus (Epistulae
ad Quintum Fratrem), 106, 490, 491,
773-.
For Ligarius (Pro Q. Ligario), 568, 570,
611, 646, 724.
For the Manilian Law (De Imperio Cn.
Pompei), 449, 578, 784.
For Marcellus (Pro M. Marcello), 645,
731 (bis).
For Milo (Pro Milone), 55, 56, 94, 175,
503, 607, 643.
For Murena (Pro Murena), 490.
On the Nature of the Gods (De Natura
Deorum), 509, 513, 514, 543.
On the Orator (De Oratore), 333, 422 (bis),
529 (bis), 714, 800.
Paradoxes (Paradoxa Stoicorum), 410.
Philippics (Philippicae Orationes), 109,
161, 194, 432, 439, 443, 630, 832.
Against Piso (In L. Calpurnium Pisonem),
523-
For Gnaeus Plancius (Pro Cn. Plancio),
431,607.
For Publius Sestius (Pro P. Sestio), 580,
654- .
For Quintius (Pro P. Quinctio), 451, 724.
For Rabirius (Pro C. Rabirio Perduellionis
Reo), 849.
For Rabirius Postumus (Pro C. Rabirio
Postumo), 643.
On the Response of the Soothsayers, 438,
439-
For Roscius the Comic Actor (Pro Q. Roscio
Comoedo), 379, 860.
For Sextus Roscius Amerinus (Pro Sex.
Roscio Amerino), 500.
Against Rullus, see On the Agrarian Law.
For Sulla (Pro P. Sulla), 496.
Topics (Topica), 529, 701, 712.
Tusculan Disputations (Tusculanae Dis-
putationes), 43, 452, 476, 643.
Against Verres (In C. Verrem), 351, 427,
438, 578, 589, 65o> 658, 660, 683, 711,
733, 751 (bis), 754, 780 (bis), 786, 799.
Cirier, Jean le, see Lecirier, Jean.
Clarus, Julius (1525-1575), Italian jurist,
339, 426, 793.
Claudian (Claudius Claudianus, c. 370-c.
404), Latin epic poet.
On the Fourth Consulship of Honorius
(Panegyricus de Quarto Consulatu
Honorii Augusti), 126, 643.
On the Sixth Consulship of Honorius
(Panegyricus de Sexto Consulatu Honorii
Augusti), 317,621.
900
Index of Authors Cited
Claudian (continued)
On the Consulship of Manlius Theodorus
(Panegyricus Dictus Manlio Theodoro
Consuli), 480.
On the Consulship of Stilicho (De Con-
sulatu Stilichonis), 213, 317, 653, 771,
784.
Agatnst Eutroptus (In Eutropium), 144,
317.
Against Rujinus (In Rufinum), 81.
Gildo (De Bello Gildonico), 450,
456, 652.
Clavasio, Angelus de, see Angelus de
Clavasio.
Clement of Alexandria (Titus Flavius
Clemens, d. c. 2 1 7), Greek Father of the
Church, 47, 610.
The Instructor (Paedagogus), 84, 469, 762.
Miscellanies (Stromata), 55, 84, 379, 588,
609, 616, 642, 665.
Exhortation to the Pagans (Protrepticum),
511.
Clement, St. (Clement of Rome, d. c. 100),
Pope, reputed author of Constitutiones
Apostolorum, 63, 72, 84 (bis), 111, 143,
144, 248, 400, 401, 479, 508, 517, 762.
Cleobulus (6th century b.c), one of the
• Seven Wise Men of Greece, 610.
Code of Justinian, see Corpus luris Civilis.
Code of Theodosius, see Theodosian Code.
Colossians, see Bible.
Columella, Lucius Junius Moderatus (ist
century), Latin writer on agriculture.
On Farming (De Re Rustica), 211, 642,
751.
Comines, Philippe de (1445-1509), Flemish
historian.
Memoires, 185, 388.
Comnenus, Manuel, see Manuel Comnenus.
Connan, Francois de (1508-155 1), French
jurist.
Commentaria Juris Civilis, 299, 306, 307,
328 (ter), 329(bis), 331, 427.
Connestagio, Girolamo de Franchi (d.
1635), Archbishop of Capua.
On the Union of the Kingdoms of Castille
and Portugal (DeW Unione del Regno
di Portogallo alla Corona di Casti-
glia),s6i.
Conon (fl. 250 b.c), Greek astronomer, 311,
312.
Conrad of Lichtenau (d. 1240), Bavarian
chronicler.
Cbronicon Urspergense} 99, 748.
Conrad Vicerius, German historian of un-
certain date.
Life of Henry VII (Libellus de Rebus
Gestis Henrici VII), 292.
Consolato del Mare, i^th-century code of
sea-laws, 603, 66j, 668, 687, 712.
Constantine VII (905-959), Emperor of the
East, surnamed Porphyrogenitus.
On Baba Kama, 369, 481 (bis).
On the Government qf the Empire (De
Administrando Imperio), 217, 287, 821.
On the Provinces (De Provinciis Regni
Byzantini), 213.
See also Selection on Embassies.
Constitutions of St. Clement, see Corpus
luris Canonici.
Constitutions of France (Constitutiones Gal-
liae), 437 (bis), 667, 687, 688, 712.
Constitutions of Sicily (Constitutiones in
Sicilia Friderici), 299.
Constitutions of Spain (Constitutiones Regni
Hispaniae), 696, 711.
Corinthians, see Bible.
Corippus, Flavius Cresconius (6th century),
African epic poet.
De Laudibus Iustini Minoris, 387.
Corpus Iuris Canonici (Leipzig, 1 879-1 881) :
Decretum Gratiani, j6, 89, 94, 98, 145,
147, 166 (bis), 182, 237 (bis), 238 (bis),
247, 248, 257, 258, 270 (bis), 319, 320,
353, 357, 3% 3^5, 3^8 (ter), 369, 371,
372 (bis), 388, 466, 479, 481, 483 (bis),
484, 486 (ter), 489, 493, 501, 516, 518-
20, 524, 554 (bis), 557, 5^5, 5^8, 586,
590, 591, 607 (bis), 611, 617, 642 (bis),
694,711,718,719,737,842.
Decretals (Dccretales Gregorii P. IX), 87,
89, 96 (bis), 180, 182, 248, 249, 267,
27h 284, 374, 375, 376, 377, 380 (bis),
386, 387, 389,426, 430, 481, 502, 543,
554 (quater), 602, 603 (bis), 608, 623
(bis), 711,737, 750, 838, 839.
Sext (Liber Sextus Decretalium Bonifacii
P.VIII), 252, 386,623,671,841.
Extravagantes tum Viginti Joannis P.
XXII tum Communes, 603 (bis). See
also commentators upon the various
parts of the Corpus.
Corpus Iuris Civilis (Berlin, 1906, 191 1,
Institutes ofjustinian (lustiniani Institu-
tiones), 103, 157, 209 (bis), 233, 270,
272, 285, 308 (bis), 309, 329, 349, 522
(bis), 624, 666, 691, 716, 767,
Index of Authors Cited
901
Corpus Iuris Civilis (continued)
Digest of Justinian (Iustiniani Digesta),
H> 34. 39 (bis)> 54» 56 (quater), 57
(bis), 72, 85, 91 (bis), 97 (bis), 116 (bis),
129, 131 (ter), 132, 140, 142 (ter), 157,
164, 181 (ter), 190 (bis), 193 (quater),
1 96, 20 1 , 206, 209 (ter) , 2 1 o (quinquies) ,
211, 212, 2l6, 217, 2l8 (bis), 221, 222
(nonies), 223 (bis), 224, 227 (bis), 238
(bis), 240 (ter), 248, 249, 250 (ter), 252
(octies), 253, 254 (bis), 265, 267, 268
(quinquies), 269, 270 (bis), 271, 272
(quater), 285, 287, 288 (bis), 293, 296
(ter), 297 (bis), 298, 299 (quater), 301
(quinquies), 302 (sexties), 303 (quater),
305 (bis), 307 (quinquies), 308 (ter),
309 (quinquies), 311 (decies), 313 (bis),
321, 322 (quinquies), 323 (sexties), 325
(octies), 326 (ter), 327, 329 (quater),
335, 338, 339 (quater), 344 (bis), 345,
346> 347» 348> 349> 35 h 35*, 354
(quater), 355 (bis), 356 (ter), 357, 359,
360 (ter), 361 (ter), 371, 374 (ter), 375,
376,378(bis),383,384(ter),387(quater),
39J> 394> 4I0> 4ri> 4I2> 4l8> 423 (bis)>
425, 428 (bis), 430, 432 (bis), 433, 434,
438 (bis), 447, 451 (bis), 457 (bis), 465,
47°> 494> 5°°> 5OI> 502 (bis), 507 (bis),
509 (bis), 514, 524 (decies), 529 (bis),
535> 537 (quinquies), 539 (bis), 542, 543,
544> 548> 552> 564> 582> 589> 59° (quin-
quies), 606 (bis), 607, 608 (bis), 622,
623, 627 (bis), 630 (quater), 632, 642,
647, 654, 658, 659 (ter), 662 (bis), 665,
666 (quinquies), 66j (ter), 668, 671
(quater), 672 (quater), 673, 683 (bis),
689, 690 (ter), 691 (bis), 692 (bis), 693
(bis), 694 (bis), 700 (bis), 701, 702, 703
(quinquies), 705 (ter), 706 (quater),
707 (quater), 708, 709 (quinquies), 710
(ter), 711 (ter), 712 (octies), 714 (bis),
717, 718, 719, 727 (bis), 753, 760 (ter),
766 (bis), y6y (bis), 771 (bis), 778 (ter),
788, 800, 808, 809 (bis), 814, 816, 819
(bis), 823 (bis), 829, 830, 833, 834, 835,
836, 837 (bis), 839, 840, 841 (bis), 843,
844 (bis), 845, 846 (quater), 857.
Code ofjustinian (Codex Iustinianus), 28,
85 (bis), 86, 89, 97, 125 (bis), 138, 142,
160, 164, 165 (bis), 213, 231, 238,252
(ter), 267 (bis), 268, 270 (bis), 271, 274,
276 (ter), 309 (ter), 325, 333, 338, 339,
34J> 353, 355, 356> 361 (bis), 374, 383
(bis), 387 (bis), 414, 428 (bis), 457, 465,
471, 476 (bis), 487, 508, 510, 519, 539,
540, 543, 623 (quater), 627, 671, 679,
705, 708 (quater), 710, 727, 750, 789
(bis).
Novels (Iustiniani Novellae), 28, 224, 267,
272, 276, 293, 358, 374, 623, 627, 711.
Edicts (lustiniani XIII Edicta Quae
Vocantur), 224.
Corsetti, Antonio(d. I503),ltalian canonist.
De Excellentia Regia, 228, 264.
De Prole Regali, 290.
Costa, Manuel de (d. 1604), Portuguese
canonist.
De Rebus seu Dispositionibus Dubiis, 293.
Cothmann, Ernest (1557-1624), German
jurist.
Consilia, 120, 311, 426, 441, 659.
Council o£ :
Africa, 68.
Ancyra, 497.
Arles, 89 (bis).
Carthage, 83.
Chalcedon, 144, 552.
Elvira, 87.
Ilerda, 368 (bis).
Nicaea, 87, 588.
Orleans, 86, 460.
St. Macra, 785.
Seville, 711.
Soissons, 144.
Toledo, 89, 144, 365, 387, 543, 544, 551.
Councils of France (Concilia Galliae), 368
(bis), 389, 531, 707, 785.
Council, Trullan, 144.
Covarruvias y Leyva, Diego de (15 12-
1577), Spanish canonist, 29.
De Contractibus, 333.
On Clementines, 175, 178, 180, 556.
On Decretals, 340, 342, 363, 375.
On Sext, 192 (bis), 193, 195, 227, 228,
229, 298, 299, 324, 326, 327, 333, 334,
347> 43i, 435 (bis), 5o8> 5°9> 55*> 552>
565, 592, 618, 628, 684, 696, 713, 719,
757, 761.
De Matrimoniis, 486, 558, 851.
Practicae Ouaestiones, 286, 287.
De Praescriptionibus, 224.
Variae Resolutiones ex pontificio regio et
caesareojure, 203, 339-40, 359 (bis), 414.
Crantz, see Krantz.
Cravetta,Aimone(i 504-1 569),Italianjurist.
Consilia, 264.
De Antiquitatibus Temporum, 227, 228,
389.
902
Index of Authors Cited
Cromer, see Kromer.
Cujas, Jacques (1520-1590), French jurist.
Paratitla on Code (Paratitla in Libros IX
Codicis Justiniani Repetitae Praelec-
tionis), 357, 711.
Observations (Libri AA/7// Observa-
tionum), 211, 703 (bis), 711, 714.
Curius Fortunatianus, see Fortunatianus,
C. Chirius.
Curtius, Rochus (fl. 15 15), Italian canonist.
De Consuetudine, 263, 457.
Curtius Rufus, Quintus (ist centuiy),
Roman historian.
Histories (Historiarum Alexandri Magni
Libri Decem, Leipzig, 1919), 10, 128
(ter), 152, 170, 172, 176, 194, 195, 212,
250, 281, 316, 379, 446, 459, 536, 541,
U 548, 655 (bis), 656, 675, 686, 697,
733, 735^746, 749, 769, 773, 777-
Curtius, Junior, Franciscus (d. 1533),
Italian civilist.
Consilia, 383, 389 (bis).
Cyprian, St. (Thascius Caecilius Cyprianus,
c. 200-258), bishop of Carthage.
To Demetrianus (Ad Demetrianum), 153
(bis), 763.
On the Lapsed (De Lapsis), 89, 357.
Letters (Epistolae), 82, 85, 87, 89 (quin-
quies), 153, 170, 490, 508 (bis), 517,
645.
On Mortality (De Mortalitate), 658.
On Patience (De Bono Patientiae), 72.
Testimonies (Ad Quirinum, Testimonio-
rum contra Judaeos Libri III), 73, 765.
On the Unity of the Church (De Unitate
Ecclesiae), 508.
On the Vanity of Idols (De Idolorum
Vanitate), 512, 517.
Cyril, St. (d. 444), bishop of Alexandria and
Doctor of the Church.
On John (Commentarius in Joannem), 154.
Against Julian (De Sincera Religione
Christianorum adversus libros Athei
Juliani), 18, 76, 126, 511, 521, 525,
615,771.
Damian, Peter (c. 1006-1072), Italian theo-
logian.
Letters (Epistolarum Libri VIII), 533.
Daneau, Lambert (15 30-1 596), French
Calvinist theologian.
Political Aphorisms (Aphorismi Politici),
146.
Daniel, see Bible.
Dante Alighieri (1 265-1 321), Italian poet.
On Monarchy (De Monarchia), 552.
d'Argentre, see Argentre, Bertrand d'.
David, Rabbi, see Kimchi, David.
Decianus, Tiberius (1508-1581), Italian
jurist.
Consilia, 397.
Responsa, 252.
Decio, Filippo (1454-1535), Italian jurist.
Consilia, 405 (bis), 419, 628, 809, 811,
817.
Decisiones Genuenses, 712.
Decretals, see Corpus Iuris Canonici.
Decretum Gratiani, see Corpus Iuris Cano-
nici.
Decretum, On, 387 ; see also individual com-
mentators.
Democritus (b. between 490 and 460 b.c),
Greek philosopher, 165, 453, 465, 476,
477, 616.
Demosthenes (c. 382-322 b.c), Greek ora-
tor, 579.
On Affairs in the Chersonese (De Cher-
soneso), 18, 774.
Against Aphobus (Adversus Aphobum),
530.
Against Aristocrates (Adversus Aristo-
cratem), 179, 473, 625 (bis), 727-8.
Against Aristogeiton (Adversus Aristogi-
tonem), 329.
Against Conon (In Cononem), 474.
For the Crown of the Trierarchy (Pro
Corona Trierarchias), 626.
On the Crown (De Corona), 810.
On the Freedom of the Rhodians (De
Rhodiorum Libertate), 395.
On Halonnesus (De Halonneso), 207, 212,
4J7, 713.
To Leochares (In Leocharem), 240, 245.
Against Leptines (Adversus Leptinem), 215
(bis),6i3.
Letter of Philip (Philippi Epistola), 439,
665,713.
Letters (Epistolae), 494, 531, 761.
Against Macartatus (In Macartatum),
273.
For Megalopolis (De Megalopolitis), 404.
Against Meidias (Contra Midiam), 74.
Against Neairas (In Neaeram), 476.
Against Nicostratus (In Nicostratum), 708.
Olynthiacs (Olynthiacae), 169.
Against Pantaenetus (In Pantaenetum),
357-
Philippics (Philippica II), 212, 787.
Index of Authors Cited
903
Demosthenes (continued)
Against Stephanus (In Stephanum), 494,
728.
Against Timocrates (Adversus Timocra-
tem), 92, 180, 181, 498, 500.
Deuteronomy, see Bible.
Dexippus, Publius Herennius (3<i century),
Greek historian.
Fragments of Scythica (edit. Dindorf, in
Historici Graeci Minores, Leipzig,
1870, vol.i), 634.
Diaconus, Paulus, see Paulus Diaconus.
Dicaearchus (fl. 300 b.c), Greek peripatetic
philosopher, 188.
Didymus (b. 63 b.c), Greek grammarian.
On Homer^s Odyssey, 638.
Digest, Justinian, see Corpus luris Civilis.
Dio Cassius Cocceianus (b. 155), Greek
historian, 65, 213, 316.
Roman History (Historia Romana), 85,
107, H3» J7°> *74> 2I4> 5«, 525, 538,
546, 568, 638, 649, 650 (bis), 665, 732,
742> 752, 754» 755, 774, 794» 835-
Selections on Embassies (Excerpta de Lega-
tionibus), 114, 407, 444, 449.
Selections on Virtues and Vices (Excerpta
V alesiand), 407.
Dio Chrysostom (b. c. 50), of Prusa, Greek
rhetorician, 244, 526.
Orations (Orationes, edit. Dindorf, Leip-
zig> ^57)y IQ> 44> I07> I35> 188, 202,
207, 214, 219, 241, 255, 256, 267, 300,
332> 353, 438, 45o, 455, 456, 45», 46o>
491, 505, 512, 514, 529, 539, 545, 547,
563, 567> 573> 585> 62i> 632 (bis), 634,
690, 708 (bis), 718, 751, 764.
Diodorus Siculus (ist century b.c), Greek
historian.
Historical Library (Bibliotheca Historica,
edit. Vogel, Leipzig, 1888), 106, 110,
112, 117, 121 (bis), 122 (quinquies),
132, 134, i69(quater), 172, 201, 202,215,
217, 221, 237, 244, 255, 268 (bis), 270,
283, 292, 313 (quater), 314, 315, 321
(bis), 360, 372, 374, 380 (bis), 393 (bis),
398, 407, 417, 434, 446, 447, 451, 456
(ter), 460, 484, 488 (ter), 490, 496, 501,
505 (bis), 506, 511, 512, 521, 527, 528,
53°> 538, 543> 562> 563> 568 (bis), 574
(bis), 576 (bis), 580, 582, 585, 625, 633
(bis), 634, 651 (ter), 657, 659, 665, 675
(bis), 686, 702, 721, 723, 725, 730, 733
(bis), 736 (bis), 737 (bis), 738 (bis), 739
(ter), 741, 750, 753 (bis), 754, 766, 769,
774> 775 (bis), 777, 77% 792> 794> 796>
826 (bis), 827, 839, 862.
Diogenes (404-323 b.c), of Sinope, cynic
philosopher, 240.
Diogenes Laertius (fl. 225), Greek bio-
grapher.
De Vita, Dogmatibus et Apophthegmati-
bus Clarorum Philosophorum Libri X,
80, 115, 187, 188, 271, 312, 353, 379
(bis), 441, 503, 510, 661.
Dionysius of Halicarnassus (c. 70-7 b.c),
Greek historian and critic.
On Isocrates, 221.
Roman Antiquities (Antiquitates Romanae,
81, 101 (ter), 108, 113 (bis), 125, 129
(bis), 135, 169, 202, 213, 250 (ter), 287,
295> 3^6> 368, 372, 4J9 (ter), 5o6> 511,
527> 54°> 542> 56i (bis), 628, 634, 650,
651, 669 (ter), 675, 677 (bis), 678 (bis),
680 (octies), 681, 682 (ter), 685, 700,
717, 726, 767, 798, 805, 811, 812, 821.
Selections on Embassies, 449, 560, 636, 678,
682.
Diphilus (fl. 300 b.c), Attic comic poet,
611.
Doctors, commentators on the civil and
canon law in general.
On Code, 179, 192.
On Decretals, 383.
On Digest, 164, 179, 268, 333.
Dominicus de Sancto Geminiano (fl. 1407),
Italian canonist.
On Sext (Commentaria in Libros Decreta-
lium et Sextum), 627.
Donatus, Aelius (b. c. 333), Latin gram-
marian.
On Terence (In Terentium Commentarium),
238, 240 (bis), 297, 331, 364, 427, 440,
446, 516, 561, 611, 649, 691, 701, 766,
833, 834.
Doneau, Hughes (Hugo Donellus, 1527-
1591), French jurist.
Commentaries (Commentaria de Iure
Civili), 686.
Douaren, see Duaren.
Driedo, or Dridoens, John (c. 1480-1535),
Belgian polemic theologian.
De Libertate Christiana, 570.
van den Driesche, Jan (1550-1616), Dutch
Protestant exegete.
On Acts (Annotationes in Novum Testa-
mentum seu Praeteritorum Libri XII),
587.
Drusius, see van den Driesche.
904
Index of Authors Cited
Duaren, Francois (c. 1 509-1 559), French
Eugraphius (6th century), commentator on
jurist.
Terence.
OnDigest, 371.
On the Andria, 239.
Dubraw, Johann (d. 1553), Bohemian
On the Self-tormentor, 325.
historian.
Eumenius (fl. 290), Roman rhetorician.
History of Bohemia (Historia Bohemiae),
Panegyrics, 732, 775 (?).
Eunapius (b. 347), Greek rhetorician, con-
Dufresne, see de la Canaye, Philippe.
tinuator of Dexippus.
Dumoulin, Charles (Carolus Molinaeus,
Selections on Embassies, 743.
1 500-1566), French jurist.
Euripides (480-406 b.c), Athenian tragic
Additions to Alexander^s Consilia (Anno-
poet, 371.
tationes in Alexandri Tartagni Con-
Alcestis, 265.
silia), 179, 340.
Andromache, 23 (bis), 236 (bis), 237, 238,
Ad Consuetudines Parisienses, 113, 333,
240, 270.
426, 552.
Antigone, 455.
Duns Scotus, John (c. 1 265-1 308), English
Children of Hercules (Heraclidae), 108,
theologian, 183.
254» 444, 532 (bis), 533, 583, 647, 738
On the Sentences of Peter Lombard (Opus
(bis), 820, 821.
Oxoniense), 39.
Cyclops, 139.
Durandus, William (c. 1 237-1 296), French
Dictys, 270.
canonist.
Electra, 246, 250.
Speculum Judiciale, 227.
Erechtheus, 579.
Fragments, 174, 274, 532, 583, 647.
Hecuba, 611.
Ebenesdras, see Aben-Ezra.
Helena, 9, 39, 126, 267, 560.
Ecclesiastes, see Bible.
Hippolytus, 363, 583.
Ecclesiasticus, see Bible.
Hypsipyle, 452.
Eginhard, see Einhard.
/^,283,532,644.
Einhard (c. 770-840), French historian.
Iphigenia in Aulis, 476, 550, 561.
Life of Charlemagne (Vita Caroli Magni),
Iphigenia among the Taurians, 250,
272.
283.
Embassies, Selections on, see Selections on
Madness of Hercules (Hercules Furens),
Embassies.
281.
Emilio, Paolo (d. 1529), Italian historian.
Ow*/, 58, 250, 474.
History of France (De Rebus Gestis
Phoenician Maidens, 17, 23, 139, 561,
Francorum), 318.
563, 588.
Ennius, Quintus (239-169 b.c), Roman
Rhesus, 621, 675.
poet, 9, 633, 822.
Suppliants, 107, 108, 200, 392, 450 (bis),
Ephesians, see Bible.
451 (bis), 455, 461, 505 (bis), 560, 561,
Epictetus (b. c. 50), Stoic philosopher.
571, 582, 636, 730.
Manual (Enchiridion), 144, 513.
Trojan Women, 525, 678 (ter), 753.
Epiphanius (c. 310-403), bishop of Salamis.
Eusebius Pamphili (264-c. 349), bishop of
Against Heresy (Panarion), 393, 520 (f).
Caesarea, 483.
On the Twelve Stones (De Duodecim
Chronicle (Chronicon Bipartitum), 118.
Gemmis), 47.
Demonstrations (Demonstrationis Evan-
Episcopus, Joannes, see Joannes Episcopus.
gelicae Libri X), 88.
Erasmus, Desiderius (1465-1536), Dutch
Ecclesiastical History (Historia Ecclesias-
scholar, 20.
tica), 450, 460 (bis), 587.
■ lise of Folly (Encomium Moriae), 618.
On the Life of Constantine (Vita Con-
Esdras, see Bible.
stantini), 86, 87, 88, 520.
Eubulus (fl. 375 b.c), Greek comic poet.
Preparation (Praeparationis Evangelicae
Fragments, 255 (bis).
Libri XV), 70.
Eucherius, St. (d. c. 449), bishop of Lyons,
Eustathius (d. c. 1200), archbishop of Thes-
*54> 155.
salonica.
Index of Authors Cited
905
Eustathius (continued)
On the lliad (Commentarius ad Homeri
Iliadem), 224, 246, 331, 345, 370, 380,
606.
On the Odyssey (Commentarius ad Odys-
seam), 128, 246, 272, 380 (bis), 611.
Eustratius (i2th century), commentator on
Aristotle.
On Nicomachean Ethics, 468, 618, 832.
Euthymius Zigabenus (c. 1100), Byzantine
monk.
Commentarium in Quatuor Evangelia (?),
96.
Eutropius (4th century), Latin historian,
460, 538.
Breviarium Historiae Romanae ab Urbe
Condita (Eton, 1793), 106, 118, 655,
685,732,772,780.
Evenus (fl. 450 b.c), Greek poet, 360.
Everard,Nicholas(i46i-i532),Dutchjurist.
Topica iuris sive loci argumentorum
legales, 411, 412 (bis), 421 (bis).
Excerpta de Legationibus, see Selections on
Embassies.
Excerpta Peiresciana, see Selections on
Virtues and Vices.
Excerpta de Virtutibus et Vitiis, see Selec-
tions on Virtues and Vices.
Exodus, see Bible.
Ezekiel, see Bible.
Faber, Antonius, see Favre, Antoine.
Faber or Lefevre, Jean (d. 1340), French
jurist.
On Code, 428.
Faber, Peter, see Faur, Pierre du.
Faur, Pierre du (Petrus Faber, c. 1530-c.
161 5), French classical scholar.
Semestria, 22, 409, 703.
Favorinus (2d century), Greek writer, 491.
Favre, Antoine (Antonius Faber, 1557-
1624), French jurist.
Codex Sabaudicus, 252.
Consilium pro Ducatu Montisferratensi,
224.
De la Jurisprudence de Savoie, 426.
De Conjecturis Juris Civilis, 841.
Felinus, see Sandeo, Felino Maria.
Fenestella (ist century), Roman historian,
129.
Fernandez Messia, Tellus (i6th century),
Spanish jurist.
Taurinenses Quaestiones (In Primas
XXXVIII Leges Tauri ?), 269.
Ferus, Joannes, see Wild, Johann.
Festus, Rufus (fl. 369), Latin historian.
Abridged History of Rome (Breviarium
Rerum Gestarum Populi Romani), 135.
Festus, Sextus Pompeius (3d or ^th cen-
tury), Latin grammarian.
De Verborum Significatu, 132, 212, 309,
314, 361, 367, 370, 378 (bis), 701, 703,
714, 822.
Feuds, On (De Feudis), 376, 404 (bis),
581.
Fice, John, see Fichard, Johann.
Fichard, Johann (1512-1581), German
jurist.
Consilia Latina, 252.
Firmanus, Joannes Bertachinus (d. 1497),
Italian canonist.
De Gabellis, Tributis et Vectigalibus, 201.
Firmicus Maternus, Julius (4th century),
Sicilian astrologer.
Matheseos Libri, 212.
Flaccus, Siculus (ist century), Roman land-
surveyor.
On the Condition of the Fields (De Con-
dicionibus Agrorum), 207, 301, 66j.
Flodoard (894-966), French historian.
Historia Ecclesiae Remensis, 403.
Florentinus (3d century), Roman jurist.
Institutiones, 14, 34, 56, 57, 694, 705.
Florus, L. Annaeus (2d century), Latin
historian.
Epitome Rerum Romanarum (Zweibrii-
cken, 1783), 118, 130, 141, 159, 199,
200, 213, 214, 221, 314, 406 (bis), 575,
57%, 653, 735, 754, 773-
Fortescue, Sir John (d. c. 1485), English
lawyer.
On the Praises of the Lazvs of England (De
Laudibus Legum Angliae), 257.
Fortunatianus, C. Chirius (fl. 450), Latin
rhetorician.
Art of Rhetoric (Ars Rhetorica), 240.
De Quantitatum Comparatione, 251.
Fortunius Garzia de Erzilla (fl. 15 14),
Spanish jurist.
Tractatus de Ultimo Fine Utriusque Juris
Canonici et Civilis, 486.
On Digest, 768.
Franciscus Aretinus, see Accolti, Francesco.
Franciscus a Ripa, Joannes (d. 1534), Italian
jurist.
On Digest, 684.
Fraxinus Canaeus, see de la Canaye,
Philippe.
906
Index of Authors Cited
Fredegarius, surnamed Scholasticus (fl. c.
660), French chronicler.
Chronicon ab anno Christi usque ad annum
642 libri V and its continuation, 118,
531, 584, 822.
Freher, Marquard (d. 1614), German his-
torian.
Epitome of Aimoin's History, 675.
Freitas, Seraphinus de (d. 1622), Portu-
guese canonist.
On the Just Asiatic Empire 0/ the Portu-
guese (De Iusto Imperio Lusitanorum
Asiatico), 604.
Fresne, du, see de la Canaye, Philippe.
Frider Mindanus, Peter (d. 1616), German
jurist.
De Processibus, 135.
Froissart, Jean (1338 - c. 1410), French
chronicler.
Chronicles (Chroniques), 263.
Frontinus, Sextus Julius (c. 40-106), Roman
military writer, 106, 66j.
De Agrorum Qualitate, 216.
Stratagems (Stratagematon Libri Tres),
412, 618, 653, 746, 755, 784, 785, 836,
858.
Fulgosius, Raphael (1 367-1427), Italian
jurist.
On Code, 627.
On Digest, 565.
Fulvius Ursinus, see Ursinus, Fulvius.
Gabrieli,Antonius(d.i555),Italiancanonist.
Communes Conclusiones, 390.
Gail, Andreas (1525-1587), German jurist.
De Arrestis Imperii, 103, 375, 81 1.
Observationes Practicae, 123, 135, 228,
333, 375, 388, 807.
De Pace Publica, 99, 261, 368, 481, 563,
589, 627, 729, 742.
De Pignorationibus, 628.
Gaius (fl. 1 38-161), Roman jurist, 344.
Daily Questions (Rerum Cottidiarum sive
Aureorum Libri VII), 354, 666, 693.
Ad Edictum Provinciale Libri XXX, 56,
'«I (bis), 331.
Institutes (Institutionum Libri IV), 691
(bis).
Galatians, see Bible.
Galen, Claudius (1 31-201), Greek medical
writer and philosopher, 194, 360, 471,
'>I,519>63I.
De Semine, 306.
On the Teachings of Hippocrates and
Plato, 103, 510.
On the Use of Parts, 53 (bis).
Gallicanus, Vulcacius, see Vulcacius Galli-
canus.
Gallus, Aelius (ist century b.c), Roman
jurist.
Terms Which Apply to the Law (De Ver-
borum Quae ad Ius Pertinent Significa-
tione), 132,702,712,714.
Gamaliel, Rabbi (d. 88), Pharisee and doc-
tor of Hebrew Law, 588.
Gellius, Aulus (2d century), Latin gram-
marian.
Attic Nights (Noctium Atticarum Libri
XX, Leipzig, 1903), 9, 26, 51, 103, 174
(bis), 187, 191, 214, 237, 251, 313, 360,
367, 392, 423 (bis), 458, 469, 472, 481,
484, 491, 503, 542, 559, 576, 588, 611,
619, 624, 633, 652, 656, 676, 683 (bis),
687, 701, 706, 751, 815, 832, 833 (ter),
834, 853, 854, 855. _
Gemara, collection of discussions concern-
ing the Mishna, 544.
Genesis, see Bible.
Gentili,Alberico(i552-i6o8),Italianjurist,
On Embassies (De Legationibus Libri
Tres, Hanau, 1594), 443-
On the Law of War (De Iure Belli Libri
Tres, Oxford, 1877), 22, 184, 185, 565,
639 (bis), 830.
Pleas of a Spanish Advocate (Hispanicae
Advocationis Libri Duo, Amsterdam,
1661), 213, 647, 667, 668.
Gersonides (Levi Ben Gerson, 1 288-1 370),
French rabbi.
On Leviticus, 794.
On Samuel, 129.
Glossators, commentators on Roman law.
On Digest, 414.
Goeddaeus, Johannes (1555-1632), German
jurist.
Consilia Marpurgensia, 99.
Goldast, Melchior (1 576-1635), Swiss his-
torian and jurist.
Collectio Constitutionum Imperialium, 213.
Gomara, Francisco Lopez de (1510-c.
1560), Spanish historian.
Historia Generalis Indiae Occidentalis,
274.
Gomez, Antonio (fl. 1550), Spanish civilist.
Variae Resolutiones Juris Civilis Com-
munis et Regii, 338.
Index of Authors Cited
907
Gomez, Luis (1494-1553), Spanish jurist.
On Institutes, 180, 552.
Gorionides, Josephus (Joseph Ben Gorion,
9th century), Jewish historian, 458.
Gorkum, Henry of, see Henry of Gorkum.
Gratian (d. c. 1158), Italian canonist.
Concordia Discordantium Canonum, cited
as Decretum, 76, 94, 98, 145, 166 (bis),
237 (bis), 238, 247, 270 (bis), 319, 320,
353, 357, 365, 369, 37i, 493, 557, 5^5,
568, 590, 591, 607, 611, 612, 617, 642
(bis), 718, 719, 737.
Gregoras, Nicephorus (c. 1295-c. 1360),
Byzantine historian.
Byzantina Historia, 79, 114, 118, 122,
216, 226, 231, 279 (ter), 310, 373, 542,
555, 563, 629, 668, 696 (bis), 738 (bis),
784.
Gregory I, Pope, surnamed the Great
(c. 540-604).
Letters (Epistolae), 83, 145, 520.
Gregory IX, Pope (d. 1241), compiler of
Decretals, 248.
Gregory Nazianzen, St. (c. 328-c. 389),
Greek Father of the Church.
Against Julian (In Julianum Impera-
torem), 146 (bis).
Orations (Orationes), 235, 517.
Gregory of Neocaesarea (c. 213-c. 270), sur-
named Thaumaturgus, Greek bishop,
768.
Epistola Canonica, 778.
Gregory of Nyssa, St. (c. 332-c. 398), Greek
Father of the Church.
Letter to Letoius (Epistola Canonica ad
Letojum), 454.
Gregory of Tours (544-594), French his-
torian.
History of the Franks (Historia Eccle-
siastica Francorum Libri X), Iio, 175,
183, 675 (bis), 785.
Grotius, Hugo (1583-1645), Dutch jurist,
author of the work here translated, in
which there are over 330 cross refer-
ences.
Mare Liberum, 189, 199.
Selection from Greek Tragedies and
Comedies (Excerpta ex Tragoediis et
Comoediis Graeca), 698.
Gryphiander, Johann (d. 1652), German
historian.
Tractatus de Insulis ex Jurisconsultis,
Politicis, Historicis et Philologis Col-
lectus, 299.
Guicciardini,Francesco(i482-i54o),Italian
historian.
History of Italy (La Historia d^Italia),
261, 263, 289, 337, 413, 428, 441, 444,
. 494, 576, 7%S> 8o4, 8l3, 822, 85°-
Guido Papae, see Pape, Guy de la.
Guilleman, Franciscus (fl. 1610), Swiss
historian.
History of Switzerland (Helvetia seu de
Rebus Helvetiorum), 154 (bis), 772.
Gunther (fl. 1205), French Cistercian monk,
reputed author of :
Ligurinus, 113, 380, 388 (bis), 554, 574,
585, 653, 785.
Habakkuk, see Bible.
Haraeus, Franciscus (d. 1632), Dutch
historian.
Annales Brabantiae Totiusque Belgii, 261,
817.
Harmenopulus, Constantine (1 320-1 380),
Greek jurist.
Promptuarium Juris Civilist 211, 297,
498.
Harpocration, Valerius (2d century), Greek
rhetorician.
Lexicon in Decem Oratores, 626.
Hebrews, see Bible.
Hegesippus (d. c. 180), ecclesiastical his-
torian, 458 (bis).
Heige, Peter (1558— 1599), German jurist.
Quaestiones Illustres (Quaestiones Iuris
Civilis et Saxonici ?), 426.
Heliodorus (4th century), bishop of Tricca.
Ethiopica, 175.
Helmold (d. c. 1183), German historian.
Chronica Slavorum et V enedorum, 279,
749-
See also Arnold of Liibeck.
Heniochus, Greek poet of Middle Comedy,
774-
Henriquez, Henricus (15 36-1608), Portu-
guese Jesuit and theologian.
De Irregularitatibus in his Theologiae
Moralis Summa, 178.
Henry of Gorkum (c. 1 386-1431), Dutch
theologian.
De Bello lusto, 22.
Henry of Segusio, Blessed, see Hostiensis.
Heraclitus (c. 535-c 475 b.c), Greek philo-
sopher of Ephesus, 42.
Ad Herennium, a treatise on rhetoric as-
cribed to Cicero or Q. Cornificius, 340,
427, 455, 49i, 730, 73i.
908
Index of Authors Cited
Hermogenianus (4th century), Roman
jurist.
Juris Epitomarum Libri VI, 57.
Herodian (3d century), Greek historian.
Histories (Ab Excessu Divi Marci Libri
Octo, Leipzig, 1855), 19, 131, 148 (bis),
184, 215, 224, 237, 314 (bis), 317 (bis),
535, 57i, 72I> 728, 73o, 77l-
Herodotus (b. 484 b.c), Greek historian,
611.
Historiarum Libri IX, 47, 106, 107, 110,
202 (bis), 262, 264, 279, 280, 283, 291,
362, 446, 449, 451, 457, 532, 540, 543,
561, 564, 622, 674, 678, 725, 729, 746,
749, 772, 822, 857.
Herrera y Tordesillas, Antonio de (1559-
1625), Spanish historian.
Historia General de los Hechos de los
Castellanos en las Islas y Tierra Firme
del Mar Oceano, 564, 630.
Hesiod (fl. 800 b.c), Greek poet.
Theogony (Theogonia), 110, 362.
JForks and Days (Opera et Dies), 41, 42,
524, 558, 716.
Hierax, Greek philosopher.
De Justitia, \6i.
Hierocles (fl. 450), New Platonist.
On the Golden Verses of Pythagoras (In
Aureum Pythagoreorum Carmen Com-
mentarius), 14, 277, 379, 462, 488.
Hieronymus, see Jerome, St.
Hieronymus de Monte, of Brescia.
De Finibus Regundis, 835.
Hilary of Arles, St. (c. 401-449), Gallic
archbishop, 553.
Hilary of Poitiers, St. (d. 368), Gallic
bishop and exegete.
On Matthetv (Commentarius in Evan-
gelium S. Matthaei), 46.
Hincmar of Reims (806-882), Frankish
archbishop, 368.
De Divortio Lotharii Regis et Tetbergae
Reginae Epistola Praenetica ad Carolum
Crassum, 364, 368 (bis), 481, 707.
Life of Remigius (Vita Sancti Remigii),
841.
Hipparchus (^th century), a Pythagorean
philosophcr.
De Animi Tranquillitate, 243.
Hirtius, Aulus (d. 43 b.c), Roman generaJ,
continuator of Caesar.
African War (De Bello Africo Liber), 649.
Book VIII of Caesar's De Bello Gallico,
858.
Homer, Greek epic poet, 458.
Iliad, 37, 79, 110, 117 (ter), 152, 219, 264
(ter), 282, 344 (quater), 345, 378, 412
(ter), 444, 452 (bis), 456, 468 (quater),
610, 616, 627, 628, 648, 649 (bis), 674
(quater), 675, 678, 702, 727 (bis), 742,
759, 793, 832.
Odyssey, 139, 171, 188, 219, 259, 265,
273, 364, 394» 453 (bis), 457, 475, S™
(bis), 591, 605, 630, 631, 638, 653, 678,
702, 764, 765 (bis), 766 (bis).
See also Batrachomyomachia.
Honorius, Philippus (Giulio Belli, 17A
century), Italian secretary of Cardinal
Dietrichstein and editor of Thesaurus
Politicus, 319.
Horace (Quintus Horatius Flaccus, 65-8
b.c), Latin poet, 491.
Art of Poetry (De Arte Poetica), 10, 38,
189, 409.
Epistles (Epistulae), 17, 35, 525, 649.
Epodes (Epodi), 197.
Odes (Carmina), 107, 187, 191, 201, 210
(bis), 282, 330, 331, 476, 617, 621, 734,
842, 853 (bis).
Satires (Sermones), II, 16, 35, 38, 42, 53,
347, 355, 463 (ter), 494, 832.
Hosea, see Bible.
Hostiensis (Blessed Henry of Segusio, d.
1271), cardinal-bishop of Ostia, Italian
canonist.
On Decretals, 288, 297, 325.
Hotman, Francois (1 524-1590), French
jurist.
Anti-T ribonianus , 29.
Quaestiones Illustres, 115, 290, 291.
Iacchiades, or Joseph bar Chijah (4th cen-
tury), Biblical exegete.
On Daniel, 122, 272, 781.
Iamblichus (d. c. 330), Chalcidian Neo-
Platonic philosopher, 379.
Letter to Dyscolion (Epistola ad Dyscolium),
143.
Life of Pythagoras (De Vita Pythagorae),
592, 747-
On the Mysteries of the Egyphans (De
Mysteriis Liber), 514.
Protrepticon ad Philosophiam, 80, 471,
509, 620.
Ibn' Ezra, see Aben-Ezra.
Illescas, Gonzalo de (d. c. 1580), Spanish
historian.
Historia pontifcal y catholica, 294.
Index of Authors Cited
909
Immanuel ben Salomo, Ziphronaeus (i3th
Jamblichus, see Iamblichus.
century), Italian rabbi.
James, see Bible.
On Proverbs (Comm. in Proverbia Salo-
Jarchi, Solomon Ben Isaac (c. 1040-1105),
monis), 467.
French Jewish exegete.
Imola, see Alexander of Imola.
On Genesis, 613.
Innocent IV, Pope (d. 1 254), Italian canonist.
On Leviticus, 794.
Apparatus seu Commentaria in Quinque
Jason Mainus or de Maino (Giasone del
Libros Decretalium, 98 (bis), 165 (bis),
Maino, 1435-1519), Italian jurist.
192, 252 (bis), 506, 627.
On Code, 552.
Institutes of Justinian, see Corpus Iuris
Consilia, 228, 297, 385.
Civilis.
On Digest, 165, 323, 380, 384, 670,
Instructiones Rei Maritimae, 688.
684.
Irenaeus, St. (c. 140-202), bishop of Lyons.
On Institutes, 180.
Against Heresies (Libri V adversus
Javolenus, Priscus (b. c. 79), Roman jurist.
Haereses, anonymous Latin transla-
Epistularum Libri XIV, cited in Digest,
tion of Greek original), 50 (bis), 72,
8S7.
110, 268, 462, 610, 694.
Ex Posterioribus Labeonis Libri X, cited
Isaeus (fl. 385 b.c), one of the ten Attic
inDigest, 713.
orators, 245.
Jeremiah, see Bible.
On the Inheritance of Pyrrhus (De Pyrrhi
Jerome, St. (Sophronius Eusebius Hierony-
Hereditate), 423.
mus, c. 340-420), Latin Father of the
De Nicostrati Hereditate, 277 (bis).
Church, 552, 610.
De Philoctemonis Hereditate, 272.
Apology against Rufinus (Apologeticum ad-
De Regno Admonitiones, 501.
versus Rufinum), 819.
Isaiah, see Bible.
Chronicle of Eusebius (Chronicon Eusebii
Isidore of Pelusium, St. (c. 370-c. 440),
Caesariensis), 118.
Alexandrian theologian.
On Daniel, 521, 555.
Letters (Epistolae), 127, 450 (bis), 765.
On Ephesians, 587.
Isidore of Seville, St. (c. 560-636), Spanish
On Ezekiel, 356, 486, 618.
historian and theologian.
On Galatians, 520.
Etymologies (Originum sive Etymolo-
On Isaiah, 618.
giarum Libri XX), 633, 636, 679, 701.
On Jeremiah, 47.
Gothic Chronicles (Historia de Regibus
On Jonah, 460.
Gothorum, W andalorum et Suevorum),
Against Jovinianus (Adversus Jovinia-
5*7, 753-
num), 80, 240, 460, 476, 508, 642.
De Summo Bono or Sententiarum Librilll,
Letters (Epistolae), 14, 61, 89, 127, 235,
364-
483, 507, 539, 554 (bis), 588, 590, 615,
Isocrates (436-338 b.c), Attic orator, 611,
642 (bis), 694, 719, 765.
728.
On Leviticus (Homiliae Origenis), 320.
Archidamus, 220, 395.
On Luke, 785.
Areopagiticus, 47.
Life of Malchus (Vita Malchi, Monachi
De Bigis, 254.
Captivi), 182.
Busiris, 542.
On Nahum, 483.
Against Callimachus, 225, 409.
On the Parables, 522.
Evagoras, 105, 380.
Against Pelagius (Dialogi contra Pela-
Praise of Helen, 451, 505.
gianos), 72, 75. _
Letters to Philip, 770.
On Perpetual Virginity, against Helvidius
To Nicocles, 501.
(De Perpetua Virginitate B. Mariae
Panathenaic Oration, 130, 212, 215, 451,
adversus Helvidium), 642.
461, 506, 550, 774.
Joannes Antiochenus, see John of Antioch.
Panegyric, 134 (ter), 191, 395, 396, 451.
Joannes de Carthagena, see Carthagena,
On Peace, 135, 310, 812.
Joannes de.
Plataic Oration, 451, 722, 725, 762, 811.
Joannes Chrysostomus, see Chrysostom, St.
Israel ben Mose, Rabbi (i6th century), 481.
John.
9io
Index oj Authors Cited
Joannes Episcopus Euchaitensis (d. c. 1054),
bishop of Euchaitae, poet.
Versus lambici, 213.
Joannes Leo, see Leo of Africa.
Joannes de Lignano, see Legnano, Giovanni
de.
Joannes Magnus, see Magnus, Johan.
Joannes Sarisberiensis, see John of Salis-
burv.
Job, see Bible.
Johannes, see Joannes and John.
John, see Bible.
John of Antioch (7th century), Greek
chronicler, quoted in the Excerpta
Peiresciana, 156, 501, 590.
John Chrysostom, St., see Chrysostom, St.
John.
John Leo, see Leo of Africa.
John Magnus, see Magnus, Johan.
John Major, see Major, John.
John of Salisbury (c. 1115-1180), English
philosopher and historian.
Policraticus, 36, 183, 297, 653.
Jonah, see Bible.
Jordanes or Jornandes (6th century), Gothic
historian.
History of the Goths (De Origine Acti-
busque Getarum), 233, 279, 287, 732.
Josephus (37-95), Jewish historian, 65, 398,
478,515,834.
Antiquities of the Jews (Antiquitates
Judaicae, Amsterdam, 1726), 19, 43,
46, 47, 55, 59, 79 (bis), 82, 83 (ter), 115,
118 (bis), 122 (quater), 126, 128, 132,
133, 136, 140, 149, 151 (ter), 166, 172,
187, 188, 213, 235 (bis), 245 (ter), 290
(bis), 367, 399, 400, 438, 439, 456, 457
(bis), 459, 473, 475, 477, 481, 482, 491,
522, 538, 54°, 542, 544, 569, 577> 587,
593, 624, 633, 635, 648, 649, 654, 661,
663, 677, 690, 696, 700, 703, 717,
721, 732 (bis), 734 (quater), 736, 747,
816.
Against Apion (Contra Apionem, Loeb
«*.), 235> 37*> 379> 398> 5°9 G>is), 518,
567,589,657,661.
Jewish War (Bellum Judaicum, Amster-
dam, 1726), 46, 56, 94, 213, 230 (bis),
2»o> 378, 45°, 457, 45«, 459 (bis), 552,
592, 645, 662 (bis), 729, 732, 776 (bis),
815.
Life (Josephi Vita, Loeb ed.), 83, 516.
Josephus Gorionides, see Gorionides, Jo-
sephus.
Joshua, see Bible.
Josippus, see Gorionides, Josephus.
Judges, see Bible.
Judith, see Bible.
Julian the Apostate (Julianus Flavius
Claudius, 331-363), Roman emperor.
The Caesars (Caesares), 269.
Letters (Epistolae), 310.
Misopogon, 152, 312.
Orations (Orationes), 39, 170, 2 12, 28 1,
471, 490, 512, 536, 540 (bis), 705, 738.
Julian, Salvius (b. c. 100), Roman jurist,
cited in the Digest.
Digestorum Libri XC, 387.
Junius Brutus, see Brutus, Junius.
Justin (Marcus Junianus Justinus, 2d cen-
tury), Latin historian.
Histories (Historiarum Philippicarum et
Totius Mundi Originum et Terrae Situs
ex Trogo Pompeio Excerptarum Libri
XLIV), 79 (bis), 80, 105, 117, 118, 119
(bis), 120, 121, 122, 130, 144, 151, 170,
186, 187, 279, 280 (quater), 281, 283,
290, 292, 394, 417, 419, 446, 472, 500,
508, 510, 516, 521, 543, 548, 632 (bis),
654, 656 (bis), 665, 669, 697, 699, 725,
728, 735> 748> 759» 77°> 83°> 849>
857.
Justin Martyr (c. 103-c. 165), Greek apo-
logist of Christianity.
Dialogue zvith Trypho (Dialogus cum Try-
phone Judaeo), 43, 45, 47 (bis), 48, 481,
719.
First Apology (Apologia Prima pro Chris-
tianis), 63, 69, 70, 73 (ter), 170, 481,
518.
Letter to Zena (Epistola ad Zenam et
Serenum), 61.
Second Apology (Apologia Secunda pro
Christianis), 24, 509.
See also Pseudo-Justin Martyr.
Justinian I (483-565), Emperor of the East,
ordered revision and compilation of
Roman law, see Corpus Iuris Civilis.
Justinian, Code of, see Corpus Iuris Civilis.
Justinian, Digest of, see Corpus Iuris Civilis.
Justinian, Edicts of, see Corpus Iuris Civilis.
Justinian, Institutes of, see Corpus Iuris
Civilis.
Justinian, Novels of, see Corpus luris Civilis.
Juvenal (Decimus Junius Juvenalis, c. 40-c.
125), Latin satirist.
Satires (Saturarum Libri Z7), II, 41, 52,
362, 398, 468, 722, 724, 742, 755.
Index of Authors Cited
911
Kimchi, David (c. 1158-c. 1235), French
Jewish rabbi.
Roots {Liber Radicum s. Lexicon), 613.
Kings, see Bible.
Knichen, Andreas von (1560-1621), Ger-
man jurist.
De Jure Territorii, 224.
De V estiturarum Pactionibus, 426.
Kotzi, Moses de (Moses Mikkozzi, I3th
century), Spanish rabbi.
Collatio Legum Mosis et Romanorum, 763.
On the Precepts of the Law (De Praeceptis
Legis), 233, 251 (bis), 320, 349, 351
(bis), 366 (bis), 372, 582 (quater), 695,
719 (bis), 763 (ter), 768.
Krantz, Albert (c. 1450-15 17), German
historian.
Danish History (Chronica Regnorum Aqui-
lonarium Daniae, Sueciae et Norzvegiae),
119, 124, 287 (bis).
History of Saxony (Saxonia sive de
Saxonicae Gentis Vetusta Origine), 131,
154, 198, 204, 225, 319, 380, 440, 445,
562, 633 (bis), 641, 668, 688.
History of Sweden, see Danish History.
Vandalica (Vandalia, sive Historia de
Vandalorum Vera Origine), 123, 267
(bis), 3io(bis),6o5, 633.
Kromer, Martin (15 12-1589), Polish his-
torian.
History of Poland (De Origine et Rebus
Gestis Polonorum Libri XXX), 123,
185, 263, 267, 291, 387, 389, 438, 439,
441, 447, 636, 655, 656, 659, 660, 684,
823, 855.
Lactantius, Lucius Caecilius Firmianus
(d. c. 325), Latin apologist of Christia-
nity, 610.
On the Anger of God (De Ira Det), 363,
462,478,492,510,513.
Epitome of the Divine Institutes (Epitome
Divinarum Institutionum), 357, 507.
Divine Institutes (Divinarum Institu-
tionum Libri VII), 24, 25, 26, 39, 41,
59> 7h % 153, 165, 170, 194, 235, 347,
451 (quater), 452, 454, 469, 471, 480,
481, 495 (bis), 510, 521, 614, 621, 646,
718,738,765,841.
Laertius, Diogenes, see Diogenes Laertius.
Lambert von Aschaffenburg (fl. 1077),
German historian.
Annales, 123, 158, 438, 592.
1569-27 3
Lampridius, Aelius (3d or 4th century),
Latin biographer, 316.
Alexander Severus, 23, 2X1, 299, 672, 680,
751, 784.
Elagabalus (Antoninus Heliogabalus), 318.
Languet, Hubert, see Brutus, Junius.
Laonicus Chalcocondylas, see Chalcocon-
dylas, Laonicus.
a Lapide, Cornelius (Cornelis Cornelissen
van den Steen, 1567-1637), Flemish
Jesuit and exegete.
On Genesis (Commentarii in Sacram
Scripturam), 66 7.
Latinus Pacatus, see Pacatus, Latinus
Drepanius.
Laudensis, see Martinus de Caraziis.
Law of the Bavarians (Lex Baioariorum),
785.
Lawof the Burgundians (Lex Burgundionum) ,
274> 275, 320.
Law of France, 603 (bis), 668 (bis).
Law ofthe Lombards (Leges Langobardorum),
197, 200, 247 (ter), 279, 297, 432, 433,
522, 590, 591, 667, 736.
Law of Portugal (Leges Portugalliae), 668.
Law, Salic (Lex Salica), 247.
Law of Sicily (Leges Siculae), 623.
Law of Spain (Leges Hispanicae), 687, 688,
713.
Law ofthe Visigoths (Lex Wisigothorum), 56,
86 (bis), 180, 257 (quinquies), 259, 309,
320, 325, 338, 339, 350, 359, 463, 481,
524 (bis), 542, 591 (ter), 709 (bis),
763.
Laymann, Paul, author of Pacis Compositio
inter Principes et Ordines Imperii
Romani Catholicos atque Augustanae
Confessioni Adhaerentes, 794, 799.
Lecirier, Jean, French jurist of uncertain
date.
De Iure Primogeniturae, 291.
Leges, see Law.
Legnano, Giovanni da (d. 1383), Italian
canonist.
Tractatus de Bello, de Repraesaliis et de
Duello, 22.
Leo of Africa (Joannes Leo Africanus, fl.
1526), Moorish geographer.
Description of Africa (Africae Descriptio
IX Libris Absoluta, Leyden, 1632),
114, 118 (bis), 200, 257, 271, 310, 475,
627.
Leo I, Pope, called the Great (d. 461).
Letters (Epistolae), 88 (bis), 707.
912
Index of Authors Cited
Leo I, Flavius (d. 474), Emperor of Con-
stantinople.
rls (Nozrllae), 211, 450, 464.
Lery, Jean de (1534-1611), French Protes-
tant minister and traveller.
Itinerary (Historia N avigationis in Brasi-
liam quae et America dicitur), 243.
Lessius, Leonard (1554-1623), Flemish
Jesuit.
De Justitia et Jure, 159, 175, 180 (bis),
182 (bis), 194, 257, 260, 324, 359 (bis),
426, 431 (ter), 433, 434 (ter), 435
(quater), 437, 564, 580, 583, 618, 692,
693, 7l9> 7*h 7^8-
Leunclavius, Johann (15 3 3-1 593), German
historian.
Turkish History (Pandectae Historiae
Turcicae), 118 (sexties), 280, 310, 321,
438 (bis), 531, 555, 678, 687 (bis), 696
(bis), 705, 719 (bis), 775, 821, 840,
849.
Leviticus, see Bible.
Lex, see Lazv.
Libanius (314-c. 390), Greek rhetorician,
*99> 38o, 542-
Orations (Orationes), 72, 246, 418, 535,
536,542,560,568.
Liber de Laudibus Legum Angliae, see For-
tescue, Sir John.
Lignano, Joannes de, see Legnano, Giovanni
da.
Ligniacus (Caesar de Ligny, i6th century,
French secretary to Cardinal de Per-
ron ?), 428.
Lindebrog, Fridericus (1 573-1648), Ger-
man jurist and critic.
On Ammianus Marcellinus, 637, 858.
Littleton, Sir Thomas de (c. 1420-148 1),
English jurist.
On Tenures (De Tenuris Angliae), 257,
339-
Livy (Titus Livius, 59 B.c-17 a.d.), Latin
historian, 397.
Ab Urbe Condita, 19 (quater), 57, 73, 98,
99 (bis), 100, 104 (ter), 105, 106
(sexties), 108 (bis), 112, 114, 115
(quater), 116 (bis), 117, 119, 126, 129
(ter), 131 (ter), 132 (bis), 133, 134, 135
(quatcr), 136 (bis), 142, 143, 144, 161,
, 171 (ter), 172, 174, 185, 191, 195,
203, 204 (bis), 213, 216, 221 (bis), 224,
225, 226 (bis), 246, 248, 255, 258, 279
(bis), 280 (bis), 282, 287 (bis), 313, 315
<ter), 342, 359, 367, 370 (bis), 391, 392
(bis), 393, 394> 395, 396 (bis)> 397, 4°4>
405, 406 (ter), 407 (bis), 408, 409, 410,
415, 416 (bis), 417, 418, 419, 420, 421,
428, 438, 439 (bis), 440 (bis), 441 (bis),
442, 444 (ter), 445 (ter), 446 (quin-
quies), 447 (bis), 452, 456 (ter), 473,
503 (bis), 523 (ter), 525, 526, 527 (ter),
528 (bis), 532, 533 (bis), 546, 547
(bis), 548 (bis), 549, 550, 558, 561,
562 (quater), 564 (bis), 571 (bis), 575
(bis), 578 (bis), 580, 584, 585, 609,
615, 616 (bis), 621, 624 (ter), 626,
628, 633, 636 (bis), 637 (bis), 638
(bis), 639, 644, 645 (quater), 646 (bis),
647 (bis), 650 (bis), 651, 652, 654 (ter),
655 (bis), 657, 658, 659, 660 (ter), 665
(ter), 667, 669, 671, 675 (bis), 676 (bis),
677 (octies), 678 (bis), 679 (quater),
680 (sexties), 681 (sexties), 682 (sexties),
683, 685 (bis), 688, 697, 699 (quater),
703, 704, 718 (bis), 720 (bis), 721 (ter),
724, 725, 728, 729 (quater), 730 (bis),
735 (ter), 736 (bis), 740 (bis), 743 (bis),
746 (quater), 748, 749, 752 (ter), 754
(quater), 755 (ter), 758, 760, 771, 772
(bis), 773, 774, 777 (bis), 779 (septies),
780 (bis), 781 (ter), 783, 786 (bis), 787
(quater), 788, 791, 792, 795 (ter), 797,
798, 800, 805, 809, 810, 813, 816 (ter),
819, 820 (bis), 822, 823, 825 (bis), 826
(bis), 827 (ter), 828, 829, 834 (bis), 836
(ter), 838 (bis), 842 (bis), 845, 848 (ter),
849 (bis), 850 (bis), 857 (bis), 858 (ter),
861, 862.
Ab Urbe Condita Epitome Librorum, 118
(ter), 216, 449.
Loazes, Fernando (d. 1568), archbishop o£
Tarragona and Valencia, 264.
Lombards, Lazv of the, see Lazv of the Lom-
bards.
Longinus, Dionysius Cassius (c. 213-273),
Greek rhetorician.
On the Sublime (De Sublimitate), 591.
Lopez or Lupus, Joannes (d. 1496), Spanish
theologian.
De Bello et Bellatoribus, I2, 684.
Lopez, Ludovicus (d. c. 1595), Spanish
canonist.
De Contractibus et N egotiationibus sive
Instructorium Negotiantium, 178.
Lorca, Petrus de (1554-1606), Spanish
Cistercian monk and theologian.
Commcntaria in Secundam Secundac I).
Thomae, 99, 565 (bis), 569.
Index of Authors Cited
913
Louis I, surnamed the Pious (778-840),
Emperor of the West and King of
France.
Capitularies, 785 (bis).
Lucan (Marcus Annaeus Lucanus, 39-65),
Latirt epic poet.
Pharsalia (De Bello Civili Libri Decem,
ed. Hosius, Leipzig, 1905), 10, 79, 126,
162, 170, 176, 191, 225, 241 (bis), 279,
305, 394, 420, 450, 455, 547, 548, 573,
574, 592, 646, 653, 676, 679, 686, 722,
735, 741* 742 (bis)> 775> 805.
Lucian (b.c. i2o),Greek writerof dialogues.
Abdicatus, 271.
Philopseudes, 605.
Lucretius (Titus Lucretius Carus, c. 96-55
b.c), Latin poet and philosopher.
De Rerum Natura, 53, 453, 473, 614, 616.
Luke, see Bible.
Lupus, Joannes, see Lopez, Joannes.
Lycophron (fl. 250 b.c), Greek poet.
Alexandra, 212.
Lycurgus (d. c. 323 b.c), Athenian orator.
Against Leocrates, 532, 535.
Lysias (c. 458-378 b.c), Athenian orator.
Orations, zj6, 353, 450, 451, 505, 530.
Maccabees, see Bible.
Macrobius, Ambrosius Theodosius (4th
century), Latin grammarian.
On the Dream of Scipio (Commentarius ex
Cicerone in Somnium Scipionis), 187,
249, 458.
Saturnalia (Saturnaliorum Conviviorum
Libri VII), 92, 190, 225, 301, 660, 763.
Maes,x\ndreas (15 15-1573), BelgianBiblical
exegete.
On Joshua (Josue Imperatoria Historia),
618.
Magnus, Johan (1488-1544), archbishop of
Upsala.
History of Sweden (Historia Gothorum
Suevorumque), 124, 675, 687, 859.
History of the Archbishops of JJpsala (His-
toria Ecclesiae Metropolitanae Upsalen-
sis), 212.
Magnus, Olaus (c. 1490-1568), archbishop
of Upsala.
Historia de Gentibus Septentrionalibus ,
344-
Maimonides (Moses ben Maimon, 1135-
1204), Spanish Jewish exegete and
philosopher, 128, 182, 366, 481, 544.
3
Canones Poenitentiales, 231, 719.
On Deuteronomy, 45, 46, 465.
On Gemara, 544.
Guide ofthe Perplexed, 38, 351, 384, 467,
477, 500, 502, 515, 539, 728.
Halakot Touhal, 622.
On Idolatry (De Idololatria), 46.
On Leviticus, 243.
To Misnajoth, 46.
On theXIIIArticles (AdXIII Articulos),
.477-
Mainus, Jason, see Jason Mainus.
Major, John (c. 1470-c. 1540), Scotch theo-
logian.
On the Sentences of Peter Lombard (In IV
Libros Sententiarum Quaestiones), 157.
Majorian (Julius Valerius Majorianus, d.
461), Roman emperor of the West.
Novels (Novellae), 317.
Malchus (fl. 600), Byzantine historian, 484,
530-
Malderen, Johann van (1563— 1633), Bel-
gian theologian.
Commentarium in Primam Secundae D.
Thomae, 397.
Mamertinus, Claudius (fl. 362), Latin
panegyrist.
Panegyric ofjulian (Panegyricus Iuliani),
620.
Manasses Ben-Joseph-Ben-Israel (c. 1604-
1659), Spanish rabbi.
Conciliator seu de Convenientia Locorum
Sanctae Scripturae quae pugnare inter
se videntur, 612.
Mantica, Franciscus (d. 1614), Cardinal,
Italian jurist.
Lucubrationes Vaticanae seu de Tacitis et
Ambiguis Conventionibus, 123.
Manuel Comnenus (c. 11 20-1 180), Greek
Emperor, 422.
Manutius, Paulus (Paolo Manuzio, 15 12-
1574), Itahan printer and critic.
De Legibus Romanis, 797.
Marcellinus, Ammianus, see Ammianus
Marcellinus.
Marcellus, Nonius, see Nonius Marcellus.
Marcellus Ulpius (fl. 150), Roman jurist,
cited in the Digest.
Digestorum Libri XXXI, 712.
Marcianus, Aelius (3d century), Roman
jurist, cited in the Digest.
Institutionum Libri XVI, 647, 691, 711.
De Iudiciis Publicis Libri II, 727.
Regularum Libri Vt 322, 766.
P 2
9i4
Index of Authors Cited
Marcus Aurelius, see Aurelius Antoninus,
Marcus.
Mariana, Juan (1536-1624), Spanish Jesuit
and historian.
History of Spain {Historiae de Rebus His-
paniae Libri XXX), 114, 116, 119
(quinquies), 120 (sexties), 122, 158,
217, 227, 253, 287, 288, 289, 290, 291
(bis), 292 (bis), 294 (septies), 337, 388,
389 (ter), 404, 406, 438, 440, 441, 517
(bis), 527, 531 (bis), 532, 533, 562 (bis),
634> 635> 759> 769 (ter), 782 (bis), 799
(bis), 804, 823, 826, 835, 844.
Marius Victorinus, see Victorinus, Marius.
Mark, see Bible.
Marsa, Antonius, an unidentified writer on
alluvial deposits, 299.
- ilius of Padua (Marsiglio Menandrino,
d. 1328), Italian jurist.
Defensor Pacis, 659.
tial (Marcus Valerius Martialis, 43-c.
104), Latin writer of epigrams.
Epigrams {Epigrammaton Libri XIV,
Loebed.), 53, 145, 211,592.
Martinus de Caraziis (Garatus) Laudensis
(fl. 1440), Italian civilist, 22.
De Bello, 98, 670, 834.
Martyr, Justin, see Justin Martyr.
Martyr, Peter, see Peter Martyr.
Martyrology, Roman, 155, 594.
Masius, see Maes, Andreas.
Mastrillus, Garsias (d. 1620), Italian jurist.
De Magistratibus, 228.
Matesilano, Matteo (i5th century), Italian
jurist.
Notabilia, 180.
Matthaei, Wilhelm (i5th century), Dutch
ecclesiastic, 22.
De Bello Iusto et Licito, 171, 770.
Matthew, see Bible.
Maximus of Turin, St. (c. 380-c. 465),
Italian bishop and theologian.
Homilies {Homiliae), 357.
Maximus of Tyre (2d century), Greek
philosopher.
Dissertations {Dissertationes), 80, 468,
474» 48l> 577> 616.
Mazzolini, Sylvester, see Sylvester Mazzo-
lini.
Medina, Bartholomcw (1527-1581), Spa-
nish Dominican and theologian.
On II. i {Commentaria in Primam Se-
cundae of Thomas Aquinas), 433,
558.
Medina, Juan de (1490-1547), Spanish
theologian.
De Restitutione et Contractibus, 324, 327,
333-
Megasthenes (fl. 300 b.c), Greek historian,
cited by Strabo, 459.
Meibom, Heinrich (1555-1625), German
historian.
Opuscula Historica Rerum Germanicarum,
290, 318, 319.
Meichsner, Johann (i6th century), German
jurist.
Decisiones Camerales, 223.
Mela, Pomponius (fl. 50), Latin geographer.
De Situ Orbis Libri III, 156, 213, 344
(bis).
Melanchthon, Philipp (1497-1560), Ger-
man reformer and scholar.
Chronicles {Chronicon Carionis), 748.
Menander (b. 342 b.c), Greek comic poet,
165, 273 (bis), 530, 610.
Menander Protector (6th century), Greek
historian, 838.
Fragments (edit. Dindorf, in Historici
Graeci Minores, Leipzig, 1871, vol. ii),
370, 387, 419, 438, 441, 501, 518 (bis),
548, 622, 690, 698 (quater), 769, 809,
817, 819.
Menchaca, see Vazquez Menchaca, Fer-
nando.
Mendoza, Bernardino de (i6th century),
Spanish diplomat and historian.
Commentaries {Comentarios de lo Sucedi-
do en los Paises Bajos desde 1567 d 1577),
198.
Menochio, Jacopo (15 3 2-1 607), Italian
jurist.
De Arbitrariis Judicum Quaestionibus et
Causis Libri Duo, 743.
On Code, 269.
Consilia, 224, 552.
De Praesumptionibus, 325.
Meurs,Jande(i579-i639),Dutchhistorian.
Danish History {Historia Danica), 605,
668.
Meyer, Jacob (1491-1552), Flemish his-
torian.
Annals of Belgium {Annales sive Historiae
Rerum Belgicarum), 158-9.
Micah, see Bible.
Michael of Ephesus (nth century), Byzan-
tine monk and philosopher.
On Nicomachean Ethics, 36, 241, 244,
354> 434> 465> 7*6> 794-
Index of Aufhors Cited
915
Micosi, Samson, Jewish exegete of uncer-
Navarra, Petrus de (fl. 1594), Spanish theo-
tain date, 366.
logian.
Mindanus, Frederick, see Frider, Peter.
De Ablatorum Restitutione in Foro Con-
Modestinus, Herennius (fl. 240), Roman
scientiae, 173, 178.
jurist, cited in the Digest.
Navarrus (Martin Azpilcueta, 1493-1586),
Dijferentiarum Libri IX, 535.
Spanish theologian.
Excusationum Libri VI, 272.
Consilia seu Responsa, 178 (bis), 324, 333,
De Manumissionibus Liber Singularis, 771 .
334 (bis), 34J> 359 (bis), 366, 434, 578,
Ad Quintum Mucium Libri XXXIX, see
624.
Pomponius, Ad Quintum Mucium.
Nazarius (fl. 321), Latin panegyrist.
De Poenis Libri IV, 683, 788.
Panegyric of Constantine (Panegyricus
Regularum Libri X, 529, 706, 712.
Constantini), 593.
Responsorum Libri XIX, 451.
Nectarius (d. 397), Patriarch of Constanti-
Molina, Luis (1535-1600), Spanish Jesuit
nople.
and theologian.
Letter to Augustine, 484.
De Justitia et Jure, 92, 98, 204, 205, 338,
Nehemiah, see Bible.
376, 397, 40I> 425> 506, 563, 565, 569,
Neostadius, Cornelius (1 549-1606), Dutch
575, 593, 600, 624, 66j, 720, 757, 761.
jurist.
Molina, Luis de (i6th century), Spanish
De Pactis Antenuptialibus, 428.
jurist.
Nepos, Cornelius (c. 100-c. 24 b.c), Latin
De Hispanorum Primogenitorum Origine et
historian.
Natura, 286, 287, 291 (bis).
Exempla, 854.
Molinaeus, Carolus, see Dumoulin, Charles.
Liber de Excellentibus Ducibus Exterarum
Monstrelet, Enguerrand de (c. 1 390-1453),
Gentium :
French chronicler.
Agesilaus, 108 (bis), 752.
Chroniques, 263.
Epaminondas, 620.
Monte, Hieronymus de, see Hieronymus de
Hannibal, 112.
Monte.
On the Kings (De Regibus), 108.
Montferrat, Guillaume de (i5th century),
Pelopidas, 438, 444.
French jurist.
Themistocles, 57, 533.
De Successionibus Regum et praecipue
Thrasybulus, 225.
Galliae, 285.
Timotheus, 212.
Moschion, Greek tragic poet of uncertain
Neratius Priscus (2d century), Roman
date, 452, 458.
jurist, 339.
Mouliard, Jean de (i7th century), French
Membranarum Libri VII, 210.
historian, continuator of De Serres.
Neubrigensis, see William of Newburgh.
Supplement, 444, 448.
Nicephorus Gregoras, see Gregoras Nice-
Musaeus (6th century), Greek grammarian
phorus.
and epic poet, 238.
Nicetas Acominatus (d. 12 16) of Chonae,
Musonius Rufus, Gaius (fl. 70), Stoic philo-
Byzantine historian.
sopher, cited in Stobaeus, 468, 481,
History of the Greek Emperors from 1117
588, 643, 775.
to 1203, 166; also:
Mysinger a Frundeck, Joachim (15 14-1588),
Alexis, 221, 364, 380, 460, 588, 589,
Brunswick chancelor.
653, 698, 753.
Centuriae Observationum Cameralium,
Andronicus, 26J, 525, 753.
380.
Isaac Angelus, 12, 198, 254, 403, 484,
Consiliorum Decades, 428.
743,766.
Joannes Comnenus, 280, 484.
Manuel Comnenus, 118, 280, 282, 287,
Naevius, Gnaeus (c. 270-c. 199 b.c), Latin
432, 633 (bis), 654, 703, 784.
epic and dramatic poet, 673.
Urbs Capta, 724, 734.
Natta, Marco Antonio (i6th century),
Nicholas of Damascus (b. 74 b.c), Greek
Italian jurist.
historian.
Consilia, 137, 252 (bis), 264.
Fragments (edit. Dindorf, in Historici
916
Index of Authors Cited
Nicholas of Damascus (continued)
Graeci Minores, Leipzig, 1870, vol. i),
259,283,287,448,474-5,499,514,751.
Nicolaus Alemannus, see Alemanni, Niccolo.
Nonius Marcellus (^th century), Latin
grammarian.
De Compendiosa Doctrina, 19, 74 (bis),
438.
Nonnus (5th century), Greek poet of Egypt.
Dionysiaca, 212.
Numbers, see Bible.
Oderborn, Paul (fl. 1585), German Lu-
theran minister.
Life of Basilides (Vita Ioannis Basilidis),
633.
Olaus Magnus, see Magnus, Olaus.
Oldendorp, Johann (c. 1480-1567), German
jurist.
Consilia Marpurgensia, 224, 228.
Oldradus de Ponte (d. 1335), Italian civilist.
Consilia, 397, 851.
On Decretals, 261.
Olympiodorus (5th century), Greek his-
torian of Egypt, 458.
Onesander (ist century), Greek philosopher.
Strategicus, 745.
Onkelos, Chaldean writer of uncertain date,
author of a pdraphrase of the Penta-
teuch, 613 ; see also Targum, Chaldean.
Opilius, Aurelius (ist century b.c), Latin
philosopher.
Musae (cited by Aulus Gellius), 833 (bis).
Oppian (2d century), Greek poet of Cilicia.
On Fishing (Halieutica), 214, 270, 653,
691.
On Hunting (Cynegetica), 241, 270.
Oppius, Caius (ist century b.c), reputed
author of pseudo-Caesarian treatises,
858.
Optatus, St. (c. 315-c. 386), Bishop of
Milevis, hence called Milevitanus.
De Schismate Donatistarum, 1 5 1 , 45 1 , 455 .
Origen (185-c. 253), Greek exegete and
theologian of Egypt, 610.
Against Celsus (Contra Celsum), 42, 47,
81, 187,379,480,519,594.
On Leviticus, 320.
Matthew, 96.
Philocalia, 61.
Orosiu», Paulus (fl. 410), Latin historian and
Christian apologist.
Historiarum adversus Paganos Libri VII,
202, 406, 599 (bis), 753.
Osorius (Jeronimo Osorio, 1506-15 80),
Portuguese bishop, 287, 517.
Otto of Freising (c. 1111-1158), German
bishop and historian, 653. See also
Radevicus.
Ovid (Publius Ovidius Naso, 43 b.c-c. 17
a.d.), Latin poet.
Art o/Love (Ars Amatoria), 54, 196, 297.
fasti, 575, 716.
Piscation (Halieutica), 52.
Heroides, 282, 363 (bis), 428.
Metamorphoses, 16, 196, 213, 245, 297,
298» 33i, 477, 525, 54°> 583 (bis), 723.
From the Pontus (Epistulae ex Ponto), 652,
722.
Remedyfor Love (Remedia Amoris), 371.
Tristia, 723.
Pacatus, Latinus Drepanius (fl. 389), Latin
rhetorician.
PanegyricofTheodosius (Panegyricus Theo-
dosii), 736, 784, 832, 858.
Pacuvius, Marcus (c. 220-c. 130 b.c), Latin
tragic poet.
Periboea, 74.
Pandects, see Corpus Iuris Civilis : Digest.
Panormitanus (Niccolo Tedeschi, 1386-
1445), Italian canonist and archbishop
of Palermo, sometimes cited as Abbas.
Consilia, 228.
On Decretals (Lectura in Decretales), 98,
165, 182, 192, 365, 380, 387, 402,
457, 552, 627, 670, 835, 840.
On Decretum, 481.
DeHomicidiis, 182.
Pape, Guy de la (c. 1400-c. 1475), French
jurist, 628.
Papinian (Aemilius Papinianus, d. 212),
Roman jurist.
Definitionum Libri II, 494.
Quaestionum Libri XXXVII, 240, 272,
323-
Responsorum Libri XIX, 212.
Papinius, Statius, see Statius.
Paralipomenon, see Bible.
Pareus, David (1 548-1622), German re-
formed theologian.
On Romans (In Divinam ad Romanos S.
Pauli Epistolam Commentarius), 146.
Paruta, Paolo (1 540-1 598), Italian his-
torian, 213.
History of Venice (Historia Venetiana,
Venice, 1605), 119, 198 (ter), 199 (bis),
213, 230, 403, 418 (bis), 445, 447, 448
Index of Authors Cited
917
Paruta, Paolo (continued)
(bis), 562 (bis), 602, 685, 749, 780, 786,
798,809,836,844,848.'
On the War in Cyprus (Della Guerra di
Cipro, Venice, 1605), 635, 703.
Paschal, Carlo (1547-1625), Italian anti-
quary.
Legatus, 424.
Paterculus, Caius Velleius (b. c. 20 b.c),
Roman historian.
Historiae Romanae ad M. Minucium Con-
sulem Libri Duo, 112, 211, 314, 406,
438, 474> 475, 548> 676> 7*4> 784-
Patricius, Lanicius.
Confession, 694.
Paul of Venice, see Sarpi, Paolo.
Paul, St. (d. c. 66), Apostle of the Gentiles.
Epistle to the Ephesians, 187.
Epistleto Titus, 187.
See also Bible : New Testament.
Paul the Jurist (Julius Paulus, d. c. 235),
Roman jurist cited in the Digest (q.v.).
Ad Edictum Libri LXXVIII, 39, 307,
308, 311 (ter), 325, 608, 660, 662, 671,
717, 843.
De lure Codicillorum Liber Singularis, 269.
Ad Legem Iuliam et Papiam Libri X, 537.
Pithanon Labeonis a Paulo Epitomatorum
Libri VIII, 704, 709.
Ad Plautum Libri XVIII, 470, 539, 544.
De Portionibus quae Liberis Damnatorum
conceduntur Liber Singularis, 272.
Ouaestionum Libri XXVI, 323, 329 (bis),
~ 344> 627-
AdSabinum Libri XVI, 630, 666, 694, 702
(bis), 706 (bis), 708, 710, 713, 833, 836.
Sententiarum Libri V , 97, 175 (bis), 247,
331 (bis), 457, 524, 591, 671, 724.
Paulinus, St. (c. 353-431), Bishop of Nola.
Letters, 765.
Paulinus of Gotha (Laurentius Paulinas,
1 565-1646), Archbishop of Upsala, 647.
Paulus Diaconus (Paul Warnefrid, c. 720-
c. 798), Lombard historian.
History ofthe Lombards (De Gestis Lango-
bardarum), 1 14, 280, 304, 368, 564 (ter),
654,694, 821.
Paulus, see Paul.
Paulus, Aemilius, see Emilio, Paolo.
Pausanias (fl. 175), Greek geographer.
Description ofGreece (Periegesis Graeciae),
106, 107, 108, 202, 273, 279, 283, 290,
292, 313, 448, 451, 456, 527, 528, 531,
549> 567> 653> 659> 66o> 793> 815, 820.
Pedius, Sextus (2d century), Roman jurist,
cited by Ulpian, 418.
Peiresc, Nicholas Claude Fabri de (1580-
1637), French patron of learning, 156,
283 ; see also Selections on Virtues and
Vices.
Peregrinus, Marcus Antonius (d. 1616),
Italian jurist.
De Juribus et Privilegiis Fisci, 201, 228,
285 (bis).
Pesichta, a Talmudic treatise, 235.
Peter of Blois (d. 1200), French theologian.
On Friendship and on the Love of God and
Neighbor (De Amicitia Christiana et
Caritate Dei et Proximi), 25, 94, 177,
467, 617.
Letters (Epistolae), 183.
Peter, see Bible.
Peter Martyr (Pietro Vermigli, 1 500-1 562),
Italian Protestant theologian.
On Judges (Comment. in Librum Iudicum),
146.
Petra, Petrus Antonius de (fl. 1600), Italian
jurist.
Tractatus de Potestate Principis, 778.
Petronius, Gaius (d. 66), Latin satirist.
Satires (Satyricon), 297, 454, 552.
Petrus de Navarra, see Navarra, Petrus de.
Petrus, see also Peter.
Philargyrius Iunius, an early Vergilian com-
mentator.
On VergiVs Georgics, 126.
Philippians, see Bible.
Philo Byblius or Herennius Byblius (2d
century), Roman grammarian.
History of Sanchoniathon, 117.
Philo Judaeus (b. c. 25 b.c), Greek philo-
sopher, 450.
On Abraham (De Abrahamo), 510, 522,
544- . r
On the Cherubim (De Cherubim), 618.
On Circumcision (De Circumcisione), 47.
De Constitutione sive Creatione Principum,
509, 728, 734, 746, 861.
On the Contemplative Life (De Vita Con-
templativa), 79, 745.
On the Creation of the World (De Opifcio
Mundi), 187, 188.
On Courage (De Fortitudine), 509.
On Curses (De Exsecrationibus), 66\, 745.
On the Embassy to Gaius (De Legatione
ad Gaium), 155, 199 (bis), 213 (bis),
224, 233, 273, 459, 485, 505, 511, 515
(bis), 518, 552, 775, 776.
9i8
Index of Authors Cited
Philo Judaeus (continued)
On Humanity (De Humanitate), 543, 657,
746.
Against Flaccus (In Flaccum), 140, 213,
452, 455 (bis), 457, 480, 525.
On the Indestructibihty of the World (De
rrnitate Mundt), 43, 311 (bis), 312,
313.
On Joseph (De Josepho), 451, 507, 617.
On the Judge (De Judice), 37, 530.
Leges Allegoriarum, 372.
On the Life ofMoses (De Vita Mosis), 272,
465,488,577,579,613,694.
On Monarchy (De Monarchia), 478, 509,
512.
On Noatfs Planting (De Plantatione), 36,
207, 212.
On Nobility (De Nobilitate), 540, 568.
On Priests (De Sacerdotibus), 235.
On Sobriety (De Sobrietate), 35.
On Special Laws (De Specialibus Legibus),
33, 181, 239, 240 (bis), 243, 368, 369,
370, 378, 422, 477, 499, 502, 503, 531,
54°, 5+2, 543, 727, 734, 7^3, 7^4-
On the Ten Commandments (De Decalogo),
II, 14, 43, 56, 80, 170, 378, 379, 495
(bis), 515,548.
That Every Virtuous Man is Free (Quod
Omnis Probus Liber Sit), 38, 43, 70,
591,620,690,691,761.
That God is Immutable (Quod Deus Sit
Immutabilis), 311.
On Those Who Offer Sacrifices (De Sacrifi-
cantibus),\~j%, 518.
Philostratus, Flavius (b. c. 170), Greek
sophist.
Life of Apollonius ofTyana, 72, 105 (bis),
126 (bis), 191 (bis), 215, 233, 270 (bis),
298 (ter), 370, 398, 567, 569, 587, 753,
803.
Lives ofthe Sophists, 299, 444, 585, 728.
Photius (c. 820-c. 891), Greek scholar,
patriarch of Constantinople.
Lexicon, 514.
Library (Bibliotheca), 123, 349, 361, 5 1 4.
Nomocanon, 484.
Piccolomini,Alessandro(i 508-1 578), Italian
philosopher.
Philosophia Civilis, 565.
Pigres, Greek poet of Halicarnassus, reputed
author of Batrachomyomachia, q.v.
Pindar (b. 522 b.c), Greek lyric poet.
Isthmaean Hymns, 605.
Pirke Abothy a Talmudic treatise, 141, 558.
Pisander (b. c. 650 b.c), Greek epic poet,
611.
Pisci, Franciscus (Fridericus Piscina ?),
jurist of uncertain date.
De Statu Excellentium Feminarum (Dis-
putatio an Statuta Foeminarum Ex-
clusiva porrigantur ad Bona Forensia ?),
269.
Pius, Antoninus (86-161), Roman emperor,
cited in Digest, 223.
Plato (428-347 b.c), Athenian philosopher,
162, 483, 509, 634.
Alcibiades, 171.
Apology (Apologia), 138, 587.
Cratylus, 312.
Critias, 313.
Crito, 481.
Euthyphro, 462.
Gorgias, 16 (bis), 467 (bis), 468, 469.
Laws (De Legibus), 14, 58, 97, 124, 143,
171, 180, 194, 244, 275, 277, 298, 348,
449, 466 (bis), 470, 512, 514, 521, 542,
582,585,664,717,774.
Protagoras, 514, 717.
Republic (De Republica), 16, 225, 330,
475, 521, 550, 600, 610 (ter), 614, 617
(bis), 618, 696, 747.
Sophist, 664. (quater).
Plautus (Titus Maccius Plautus, c. 254-
184 b.c), Roman comic poet.
Amphitruo, 258, 636, 659 (bis).
Asinaria, 358.
The Two Bacchises (Bacchides), 585,
676.
Captives (Captivi), 139, 676.
Casina, 247, 255.
Mercator, 236.
The Persian (Persa), 813.
Poenulus, 246, 630.
Rudens, 1 64, 375.
Trinummus, 298, 470, 655.
Truculentus, 816.
Pliny the Elder (Gaius Plinius Secundus,
23-79), Roman naturalist.
Natural History (Historia Naturalisy
Leyden, 1669), 42 (bis), 56, 59, 80,
106 (ter), 115, 129, 188, 189, 200, 211
(ter), 214 (bis), 215, 217, 241, 256, 270,
295 (sexties), 301, 313, 344, 345, 351
(ter), 352, 353, 358 (bis), 394, 422, 452
(ter), 453 (bis), 458, 472, 475, 499, 506,
576, 577, 608, 636 (bis), 637, 652, 659,
675, 676, 685, 693, 734, 751 (ter), 752,
785, 824, 858, 859.
Index of Authors Cited
919
Pliny the Younger (Gaius Plinius Caecilius
On Monarchy (De Unius in Republica
Secundus, 62-c. 114).
Dominatione), 122, 125.
Letters (Epistulae, Loeb), 134, 251 (bis),
Narrationes Amatoriae, 528.
269 (ter), 301, 388, 500, 518, 558, 576,
On Noble Traits of Women (Mulierum
589, 616, 643, 655, 763, 764, 767, 775
Virtutes), 458, 651.
(bis), 776 (quinquies), 805.
Parallel Lives (Vitae Parallelae) :
Panegyric (Panegyricus, London, 17 16),
Aemilius Paulus, 439, 676, 732.
36 (bis), 121, 148, 207.
Agesilaus, 17, 197, 198, 314, 321, 615,
Plotinus (205-270), Greek philosopher, 458.
616, 619, 625, 674, 752, 755, 823,
Plutarch (c. 50-c. 120), Greek philosopher
848.
and biographer, 356, 508, 834.
^,152,156,733,783.
Amatorius, 512.
Alexander, 45, 79, 412, 535, 621, 665
De Animae Procreatione, 311.
(bis), 675, 686, 697, 756, 761, 774,
Apothegms (Apophthegmata Laconica), 18,
840.
197 (bis), 335, 606, 761, 787, 789.
Antony, 456, 547, 564.
Apothegms (Regum et Imperatorum Apo-
Aratus, 135, 468, 472, 473, 736.
phthegmata), 10 (bis), 125, 516, 536,
Aristides, 620, 674.
685, 773, 779-
Artaxerxes, 112, 290.
On the Bravery of Alexander, see On the
Brutus, 162, 459, 740, 787.
Fortune of Alexander.
Caesar, 10, 474, 752.
Against Colotes (Adversus Colotem), 509.
Camillus, 19, 527, 571, 576, 735.
Conjugal Precepts (Conjugalia Praecepta),
Cato the Elder, 41, 162, 384, 679, 763,
306.
768.
Consolation (Consolatio ad Uxorem Suam),
Cato ofUtica, 738.
12.
Cimon, 197, 215 (bis), 436, 489, 526,
Consolation(ConsolatioadApollonium),\$<).
629,631.
On the Contradictions of the Stoics (De
Cleomenes, 108, 458.
Repugnantiis Stoicis), 14, 79, 420, 610.
Comparison of Cleomenes and the
On the Delayed Vengeance of the Deity (De
Gracchi, 576.
His Qui Sero a Numine Puniuntur), 312,
Comparison of Lycurgus and Numa,
469, 470, 471, 516, 536, 541 (bis), 542,
576.
543,544-.
Comparison of Lysander and Sulla, 156.
On Education of Children (De Liheris
Comparison of Pelopidas and Marcellus,
Educandis), 620.
737,738,788.
On Exile (De Exilio), 462.
Comparison of Philopoemen and Titus,
On Fate (De Fato), 160.
107, 476.
On the Fortune of Alexander (De Alex-
Comparison of Solon and Publicola, 160.
andri Magni Fortuna aut Virtute), io,
Comparison of Theseus and Romulus,
232, 505 (bis), 6S7.
495, 5o5-
Greek Questions (Quaestiones Graecae),
Comparison of Timoleon and Aemilius
108, 298, 531, 564, 736, 737, 750, 769.
Paulus, 781.
On the Life and Poetry of Homer (De Vita
Coriolanus, 129, 678.
et Poesi Homeri), 266.
Crassus, 170, 791.
Lives ofTc.n Orators (De Vitis Decem Ora-
Demetrius, 137, 198, 243, 395, 456,
torum), 245, 460,543.
589, 605, 685, 730, 744, 751, 759,
On the Love of Brothers (De Fraterno
769.
Amore), 121, 290.
Dion, 468, 741.
On the Love of the Offspring (De Amore
Eumenes, 380.
Prolis), 269.
Fabius Maximus, 407, 660.
On the Malice of Herodotus (De Herodoti
Flamininus, 161, 702, 749, 755, 772,
Malignitate), 536.
774, 783.
On Matters of Common Knowledge (Ad-
Galba, 388, 546.
versus Stoicos de Communibus Notitiis),
Gracchus, Tiberius, 157,406,590,660,
188, 513.
798.
920
Index of Authors Cited
Plutarch (continued)
Parallel Lives (continued)
Lucullus, 211, 527, 680.
Lycurgus, 161,224, 797.
Lysander, 156, 197, 373, 606, 674.
Marcellus, 108, 456, 606, 685.
Marius, 10, 175,393,862.
las, 172, 823.
'»*>35> 5ii> 562, 570-1.
Otbo, 574, 692.
Pelopidas, 177, 321, 444, 476.
Pericles, 201, 203, 541.
Philopoemen, 476, 606.
Phocion, 580.
Pompey, 10, 43, 213, 507, 562, 605,
784, 794.
Publicola, 160, 639, 654, 829.
Pyrrhus, 17, 117, 122 (bis), 292, 456,
549, 652.
Romulus, 281, 473, 527, 669.
Sertorius, 118.
Solon, 16, 106, 164, 194, 255, 265, 271,
488,521,562,605,797,819.
Sulla, 141, 606, 659, 752, 813.
Themistocles, 122 (bis), 152.
Theseus, 108, 311, 451, 456, 717.
77aw/«w,557,659,74i.
Parallels (Parallela Graeca et Romana),
657.
Political Precepts (Praecepta Gerendae
Reipublicae), 476.
Roman Questions (Quaestiones Romanae),
239» 37°, 5i6, 773, 788, 789.
On Superstition (De Superstitione), 509.
Symposiacs (Conviviales Disputationes),
196,412,429.
To an Unlettered Prince (Ad Principem
lneruditum), 717.
Whether Water or Fire Is More Useful
(Aquane an Ignis Sit Utilior), 199.
Pollio, Trebellius (30I or 4th century), Latin
biographer.
Thirty Tyrants (Tyranni Triginta), 318.
Pollux, Julius (c. 130 — c. 188), Greek
rhetorician.
Onomasticon, 626.
Polyaenus (fl. 160), Greek writer of Mace-
donia.
Strategemata, 410 (bis), 741, 747, 750
(bis), 755-
Polybius (b. c. 206 b.c), Greek historian,
81, 397, 443,475-
Histories (Historiae), 17, 41, 108, 112,
125, 136, 149, 169, 215 (bis), 279, 370,
395, 4°4 (bis), 4°7, 4°8, 4IQ (ter), 4X5,
416 (bis), 436, 441, 494, 526 (bis), 528,
546 (bis), 567, 605, 606, 621, 636, 651
(bis), 654, 658, 671, 6yj, 683, 685, 690,
702, 733, 734, 736, 745, 746, 749, 75*»
754, 769, 772, 779, 805, 816, 822, 849,
853.
Selections on Embassies, 106, 133, 251 (bis),
279 (bis), 374, 406, 4l6, 445, 449, 53°,
546, 562 (ter), 622 (ter), 627 (bis), 659,
660, 669, 675, 699, 702, 703 (ter), 751,
754, 758, 772 (bis), 816, 819, 827 (bis),
859.
Pompeius Trogus, see Trogus, Pompeius.
Pomponio Leto, see Pomponius Laetus.
Pomponius, Sextus (2d century), Roman
jurist, 666 (cited by Ulpian), 711
(erroneously for Paulus), quoted in
Digest.
Enchiridii Liber Singularis, 129, 514, 66j,
692.
Ad Quintum Mucium Libri XXXIX, 438,
446, 630, 658, 662, 666 (bis), 671 (bis),
690, 701, 702, 703, 711, 714, 819.
Ex Plauto Libri VII, 201, 210.
Ad Sabinum Libri XXXVI, 190, 311,
360,672,703,710.
Pomponius Laetus, Julius (1425-1497),
Italian antiquary.
Compendium of Roman History from the
Death of Gordian to Justinus III
(Compendium Historiae Romanae ab
Interitu Gordiani usque ad Justinum
III), 460.
Pomponius Mela, see Mela, Pomponius.
Pontanus, Johan Isaac (c. 1570-1639),
Danish historian.
History of Denmark (Historia Danica),
124,279,285,562,821,823.
Discussiones Historicae (ed. 1637), 434,
528.
Porphyry (Porphyrius, 233-304), Neo-
Platonic philosopher.
On Abstaining from Animal Food (De
Abstinentia), 12 (bis), 18, 42, 43, 53,
79 (bis), 110, 187, 370, 477 (ter), 495,
728, 747 (bis), 751, 794.
Homeric Questions (Homeruae Quaes-
tiones), 224.
Life of Pythagoras (De Vita Pythagorae),
187.
Portuguese Law, see Law of Portugal.
Posidonius (fl. 63 b.c), Stoic philosopher.
Histories, 255.
Index of Authors Cited
921
Possidius, St. (fl. 397-437), Bishop of Ca-
lama in Numidia.
Life of Augustine {Vita Sancti Augustini),
277,841.
Precepts of the Law, Precepts Bidding, Pre-
cepts Forbidding, see de Kotzi, Moses.
Prierio, Sylvester of, see Sylvester Mazzo-
lini.
Priscian (fl. 525), Latin grammarian.
Institutiones Grammaticae, 683.
Priscian (Theodorus Priscianus, 5th cen-
tury), physician.
Qynaecia, 194.
Priscus (d. c. 471), Byzantine historian.
Fragments, 765.
Selections on Embassies (Excerpta de
Legationibus), 318 (bis), 527, 653, 704,
763.
Probus, Marcus Valerius (fl. 100), Roman
literary critic, cited for Nepos, 620.
Proclus (412-485), Neo-Platonic philo-
sopher, 616.
On Plato's Republic, 745.
On Hesiod's Works and Days, 525.
Procopius (c. 495-c 565), Byzantine histo-
rian, 838.
On the Buildings ofjustinian (De Aedifi-
ciis Imperatoris Justiniani Libri VI),
118, 213, 262.
Gothic War (De Bello Gothico Libri IV),
19 (ter), 76 (bis), 114, 136, 169 (bis),
189, 199, 213, 262, 286, 287, 320, 357,
423 (bis), 432, 438, 441 (bis), 444, 459,
488, 506, 520, 530, 531, 533, 548, 555,
562 (bis), 570, 571, 572, 574, 602, 651,
653, 657, 670, 684, 687, 704, 705 (bis),
724, 726, 736, 738, 739, 741, 748, 750,
753, 766, 776, 784, 787, 818, 837, 838,
848, 853 (bis), 855.
Persian War (De Bello Persico Libri II),
122 (bis), 136 (bis), 198, 270, 276, 372,
387, 396, 416, 460, 546, 555, 576, 578,
657, 660, 738 (bis), 752, 814, 860.
Secret History (Anecdota sive Historia Ar-
cana), 215 (bis), 224, 317, 345, 353, 517.
Vandalic War (De Bello Vandalico Libri
II), 19 (bis), 114, 118 (bis), 279, 287,
292, 409, 420, 445, 462, 473, 520, 570,
571, 584, 599, 631, 656, 657, 672, 680,
687, 698, 711 (bis), 724, 749, 752 (bis),
784 (bis), 814.
Proculus, Sempronius (ist century), Roman
jurist, cited in Institutes and Digest,
254, 306, 322.
Epistolarum Libri, 131 (ter), 132, 714
(bis), 823.
Propertius, Sextus (c. 50-c. 16 b.c), Roman
elegiac poet.
Elegies (Elegiae), 593, 685, 723.
Proverbs, see Bible.
Prudentius Clemens, Aurelius (348-c. 405),
Christian Latin poet.
Against Symmachus (Contra Symmachum),
250 (ter).
Hymns (Cathemerinon), 451, 453.
Psalms, see Bible.
Pseudo-Justin Martyr.
Responsa ad Orthodoxos (Responsiones ad
Orthodoxos de Quibusdam Necessariis
Quaestionibus, Migne ed.), 511, 519,
544-
Publilius Syrus (fl. 43 b.c), Roman writer
of mimes.
Sententiae, 74, 144, 467.
Quintilian (Marcus Fabius Quintilianus,
c. 35-c. 100), Roman rhetorician.
Declamations, 152, 175, 190, 239, 251,
265, 277-8, 361, 421, 422, 423, 425,
427, 453, 454, 457, 474, 485, 487, 528>
589 (bis), 643, 716, 722, 759, 792 (bis),
813.
Institutes of Oratory (Institutio Oratoria,
Loeb), 42-3, 43, 56, 159, 174 (bis), 270,
421, 451, 484, 558, 566, 570, 610, 611
(bis), 614, 615, 617, 618, 642, 684, 688,
, 697, 7°°, 7°5, 7l7-
Quintus Mucius, see Scaevola, Quintus
Mucius.
Radevicus (i2th century), continuator of
Otto of Freising, 230, 405, 438.
Regino of Priim (d. 915), German chroni-
cler.
Chronicon, 318, 650.
Regius, Aegidius (Giles de Coninck, 15 71-
1633), Belgian Jesuit theologian.
De Moralitate, Natura et Effectibus
Actuum Supernaturalium, 204, 325,
563, 569, 587> 593, 629, 756, 759, 768,
778,786,821.
Reidanus,Everardus, see Van Reyd, Everard.
Reinkingk, Theodor (d. 1664), German
jurist.
Tractatus de Regimine Seculari et Eccle-
siastico (Marburg, 1641), 217, 224 (bis),
228, 252, 291, 315, 386, 389, 635, 807,
841.
922
Index of Authors Cited
Revelation, see Bible.
Rhedanus, Everardus, see Van Reyd, Eve- I
rard.
Ripa, Franciscus a, see Franciscus a Ripa.
Rochus de Curte, see Curtius, Rochus.
Roderick of Toledo (Rodrigo Ximenes,
c. 1170-c. 1245), Spanish archbishop
and historian.
History of the Arabs (Historia Arabum),
287.
History 0/ Spain (Chronica Hispaniae),
563.
Roderick, see also Sanchez de Arevalo,
Rodrigo.
Romans, see Bible.
Romanus, Ludovicus (1409-1439), Italian
jurist.
Consilia, 807.
Rosate, Alberico de (d. 1354), Italian jurist.
On Decretals, 264.
De Statutis, 420.
Rosella, Summa, see Trovamala, Baptista.
Rosenthal, Henricus a (l7th century), Ger-
man jurist.
De Feudis or De Jure Feudorum (Synopsis
Totius Iuris Feudalis ?), 301, 426.
Rufinus (d. c. 1192), canonist of uncertain
nationality.
Summa in Gratiani Decretum, 87.
Rufus, Latin author joined with Vegetius in
Plantin's edition of 1607.
Leges Militares, 140.
Rugerius, Bonifacius (d. 1591), Italian
jurist.
Consilia, 264.
Rupert (Rupertus Tuitiensis, d. 1135),
abbot of Deritz, German Benedictine
exegete, 618.
Sabinus, Masurius (ist century), Roman
jurist, cited by Tryphoninus in the
Digest, 710.
Salic Law, see Law, Salic.
Saliceto, Bartholomaeus de (d. 141 2), Ita-
lian jurist.
On Code, 428, 627, 673, 712.
Salisbury, John of, see John of Salisbury.
Sallust (Gaius Sallustius Crispus, 86-34
b.c), Roman historian.
Catiline or Conspiracy of Catiline or
Catilinarian War (Bellum Catilina-
rium), 139, 210, 660, 770, 789, 799,
850.
Histories (Historiae), 126 ; also the follow-
ing excerpts :
Speech of Philip (Oratio Philippi in
Senatu), 731.
Oration of Macer (Oratio Macri Tr.
Pl. ad Plebem), 172.
Letter of Mithridates (Epistula Mithri-
datis), 270, 556, 582.
Jugurtha or Jugurthine War (Bellum
Jugurthinum), 139, 140, 162, 213, 280,
392, 394, 441, 442, 448, 473, 527, 697,
738, 740, 744, 776, 848.
On Public Administration (Ad Caesarem
Senem de Re Publica Oratio), 731, 740,
742,770,861.
On Public Administration (Ad Caesarem
Senem de Re Publica Epistula), 644.
Salmasius, Claudius (Claude Saumaise,
15 88-1 65 3), French scholar.
On Solinus (Plinianae Exercitationes in
C. J. Solini Polyhistorem), 301.
Salomon, Rabbi, see Jarchi, Solomon Ben
Isaac.
Salvianus (d. c. 490), priest of Marseilles.
Against Avarice (Adversus Avaritiam),
119,767.
On the Government of God (De Guberna-
tioneDet),^, 519, 524, 525.
Samuel, see Bible.
Sanchez de Arevalo, Rodrigo (Rodericus
Sanctius, 1404-1470), Spanish bishop
and historian.
History of Spain (Historia Hispanicd),
5I7-
Sanchez, Thomas (1 550-1 610), Spanish
Jesuit and theologian.
De Sancti Matrimonii Sacramento Dis-
putationum Libri X, 341.
Sanction des Eaux et Forets, 300.
Sanctius, see Sanchez.
Sandeo, Felino Maria, cited as Felinus
(c. 1444-1503), Italian canonist.
On Decretals, 213, 252, 333, 387, 835.
Sarisberiensis, Joannes, see John of Salis-
bury.
Sarpi, Paolo (Father Paul or Paul of Venice,
1 552-1623), Italian Servite and theo-
logian.
De Jure Asylorum Liber Singularis,
532.
Saturninus, Claudius (2d century), Roman
jurist, cited in the Digest.
De Poenis Paganorum Liber Singularis,
501, 502.
Index of Authors Cited
923
Saturninus, Venuleius (3d century), Roman
jurist.
Stipulationum Libri XIX, 659.
Saumaise, Claude, see Salmasius, Claudius.
Saxo Grammaticus (d. c. 1184), Danish
historian.
History of Denmark (De Gestis Danorum
or Historia Danica), 86, 119, 280 (bis),
304, 393>402>554>63i-
Sayrus, Gregorius (1570-1602), English
Benedictine and theologian.
Clavis Regia Sacerdotum Casuum Con-
scientiae sive Theologiae Moralis Tbe-
sauri Locos Omnes Aperiens, 487.
Scaevola, Quintus Cervidius (2d century),
Roman jurist.
Digestorum Libri XL, 423.
Responsorum Libri VI, 308.
Scaevola, Quintus Mucius (d. 82 b.c),
Roman jurist.
Cited by Cicero in his Topics, 701.
Cited by Pomponius in the Digest, 529.
Cited by Ulpian in the Digest, 56.
Scafnaburgensis, see Lambert von Aschaf-
fenburg.
Scaliger, Joseph Juste (1 540-1 609), French
critic and scholar.
OnFestus, 822.
von Schaffenburg, Lambert, see Lambert
von Aschaffenburg.
Scholiast on Apollonius Rhodius, 622.
Scholiast on Aristophanes, 198, 380 (bis),
602 (bis).
Scholiast on Euripides, 281.
Scholiast on Homer, 264.
Scholiast on Horace, 35 (bis), 42, 189, 197,
331, 347, 463, 491, 617, 621, 734.
Scholiast on Juvenal, 742.
Scholiast on Sophocles, 366.
Scholiast on Thucydides, 631, 725, 833.
Schutz, Caspar (fl. 1561), German historian.
Prussian History (Historia Prussica), 604.
Scriptores Historiae Augustae, see Capi-
tolinus; Lampridius ; Pollio; Spartia-
nus ; Vopiscus ; and Vulcacius.
Segusio, Henricus de, see Hostiensis.
Seissel, Claude de, see Seyssel, Claude de.
Selden, John (15 84-1654), English lawyer.
Mare Clausum (London, 1636), 189.
Selections on Embassies (Excerpta de Lega-
tionibus or Ursiniana), a collection of
selections from various writers com-
piled under the direction of Constan-
tine VII Porphyrogenitus and first
published by Fulvio Orsini (1582), 198,
423, 669 ; see also names of authors ofthe
selections.
Selections on Virtues and Vices (Excerpta de
Virtutibus et Vitiis or Peiresciana or
Valesiana), a collection of selections
from various writers compiled under
the direction of Constantine VII
Porphyrogenitus and first published
from a manuscript of Peiresc by Henri
de Valois (1634), see names of authors
of the selections.
Seneca, Lucius Annaeus (c. 3 B.c-65 a.d.),
Roman philosopher, 244.
Agamemnon, 635, 817.
On Anger (Ad Novatum de Ira Libri III,
Leipzig, 1905), 34,42 (bis), 170,446,463,
466 (ter), 467 (bis), 468 (quater), 470
(bis), 471, 477 (bis), 483 (bis), 485, 488
(sexties), 503, 521, 540, 547, 548, 582,
639> 7*7> 7*7, 734> 735» 742> 77h 788.
On Benefits (De Beneficiis ad Aebutium
Liberalem, Zweibriicken, 1782), 10,
12, 36, 56, 73, 105, 142, 170, 171, 175,
177 (ter), 186, 196, 199, 207 (ter), 219
(bis), 233, 256 (bis), 257, 275, 300, 331,
333, 351 (bis), 352, 361, 376, 398, 426
(bis), 449, 451, 454, 483, 489 (bis), 490,
5°3> 5°5> 506, 5H> 52* (bis), 582 (bis),
584, 589, 602, 615 (bis), 619, 623 (ter),
664, 684, 717, 762, 763, 766 (ter), 767
(bis), 778, 793, 796, 801 (quinquies),
802 (ter), 824, 832 (bis).
On Chance Remedies (Ad Gallionem de
Remediis Fortuitorum, Leipzig, 1902),
466.
On Clemency (Ad Neronem de Clementia,
Zweibrucken, 1782), 76, 152 (bis), 177,
311, 475, 485, 488, 490, 491, 492, 501
(bis), 547, 568 (bis), 569, 570, 575, 582,
601, 717, 722, 730, 731, 739, 762, 763,
764 (bis), 772, 828.
On Consolation (Ad Helviam Matrem de
Consolatione, Leipzig, 1905), 718.
On the Happy Life (De Vita Beata ad
Gallionem Fratrem, Leipzig, 1905), 97,
251.
Hercules Oetaeus, 368.
Hercules Raging (Hercules Furens), 499,
521, 548.
Hippolytus (or Phaedra), 241, 556.
On the Leisure of the Wise Man (De Otio
aut Secessu Sapientis, Zweibriicken,
1782), 486.
924
Index of Authors Cited
Seneca, Lucius Annaeus (continued)
Letters (Ad Lucilium Epistulae Morales,
Loeb and Zweibriicken, 1782), 19, 34,
42, 43, 51 (bis), 52 (bis), 56, 63 (ter),
107, 129, 146, 170, 187, 188, 203, 228,
251, 311 (bis), 312, 313, 331, 459, 488,
495, 509, 5i3 (bis), 547, 5^8, 577, 59°,
645, 718, 762, 763 (bis), 764 (ter), 860.
Mcdea, 140.
cral Questions (Naturales Ouaestiones,
Zweibriicken, 1782), 115, 188 (bis),
203, 301, 313 (bis), 365, 511, 585 (bis),
728.
Octavia, 735.
Oedipus, 656.
Phoenician Women (Phoenissae), 749.
On the Steadfastness of the Wise Man (De
Constantia Sapientis, Leipzig, 1905),
74 (ter), 201.
Thyestes, 147.
On Tranquillity (Ad Serenum de Tran-
quillitate Animi, Leipzig, 1905), 766.
Trojan Women (Troades), 645, 649, 716,
737, 748, m-
Seneca, Marcus (or Lucius) Annaeus (c. 60
b.c.-c. 37 a.d.), Latin rhetorician,
father of the preceding.
Controversies (Controversiae, Vienna,
1887), 58, 80, 157, 165, 193-4, 194,
211, 231, 250, 252, 335, 367, 392, 42I,
422, 425, 433, 450, 488, 489 (quater),
503, 551, 588 (bis), 591, 643, 660, 691,
697, 705, 793-
Suasoriae (Vienna, 1887), 115, 191, 496,
567.
Septuagint, first Greek translation of He-
brew Old Testament, 613 ; see also
Bible : Old Testament.
Serranus, Joannes, see de Serres, Jean.
de Serres, Jean (c. 1 540-1 598), French
historian.
Inventaire General de VHistoire de France
de Pharamond jusqu'd Charles VI, 261
(bis), 285, 286, 292, 293 (bis), 319, 388,
444, 448, 739 (bis), 825-
Servin, Louis (1 555-1626), French magis-
trate, 604.
Servius, Marcus Honoratus (4th century),
Roman grammarian (In Vergilii Car-
mina Commentarii, Leipzig, 1878-
1902).
On the Aeneid, 33 (bis), 59 (ter), 92, 101,
117 (bis), 129, 166, 172, 190, 197, 201
,202,215,247,253,261,277,279
(ter), 281, 313, 337, 339, 392 (bis),
393 (ter), 410, 438, 440, 454, 456 (bis),
458, 464 (ter), 516, 531, 575, 605, 606,
636 (ter), 637 (quater), 641 (bis), 645,
660 (quater), 673, 675, 690 (bis), 692,
701, 736, 742, 767, 775, 789, 822, 829,
833 (bis), 836 (bis), 858.
On the Eclogues, 117, 199, 217, 344, 660,
765.
On the Georgics, 126, 189-90, 199, 344,
362, 452.
Servius Sulpicius, see Sulpicius, Servius.
Severus, Sulpicius (4th century), of Aqui-
tania, ecclesiastical historian.
Sacred History (Historia Sacra), 87, 89
(quater), 520 (bis), 78 1.
Sext, see Corpus Juris Canonici.
Sextus Aurelius, see Aurelius Victor, Sex-
tus.
Sextus, Empiricus (fl. 200), Greek philo-
sopher and physician.
Against the Mathematicians (Adversus
Mathematicos), 42.
Pyrrhoneia, 233, 256.
Seyssel, Claude de (c. 1450-15 20), French
bishop and historian.
De la Monarchie de France, 228.
Siculus Flaccus, see Flaccus, Siculus.
Sidonius Apollinaris, Gaius Sollius Modes-
tus (c. 431-c 482), bishop of Clermont
and poet.
Letters (Epistolae), 387.
Sigebert of Gembloux (c. 1035-1112),
Belgian Benedictine and historian.
Chronicon sive Chronographia, 290.
Silius Italicus, Gaius Catius (c. 25-100),
Roman epic poet.
Punica, 374, 456, 509, 548, 560, 605, 606,
653 (bis), 752, 792.
Silvester, see Sylvester.
Simeon Magister (Simeon Sethus, Ilth
century), Greek writer.
Syntagma de Cibariorum Facultate, 87.
Simler, Josias (15 30-1 576), Swiss Protestant
minister and historian.
History of the Swiss Republic (De Re-
publica Helvetiorum), 253, 533, 581,
585, 672, 675, 685, 734, 753, 819.
Simonides, early Greek poet cited by Plato
and Plutarch, 330, 468.
Simplicius (d. 549), peripatetic philosopher
of Cilicia.
On the Manual of Epictetus, 144, 234.
Sirach, Son of, see Bible.
Index of Authors Cited
925
Sirmond, Jacques (1559-1651), French
Jesuit and antiquary.
Appendix to Theodosian Code (Appendix
Codicis Theodosiani), 438.
Caroli Calvi et Successorum Aliquot
Franciae Regum, 318.
Councils of France (Concilia Antiqua
Galliae), 364, 368.
Sisenna, Lucius Cornelius (fl. c. 1 19-67 b.c),
Roman annalist, cited by Servius, 202.
Sixtinus, Regnerus (1577-1617), German
jurist.
De Regalibus, 301.
Smith, Sir Thomas (15 12-1577), English
statesman.
English Commonzvealth (Latin translation
called De Republica Anglorum), 263.
Socinus, Bartholomaeus (1436-1507), Ita-
lian jurist.
Consilia, 223.
Socrates (b. c. 379), ecclesiastical historian
of Constantinople.
Ecclesiastical History (Historia Ecclesias-
tica), 520.
Solinus, Gaius Julius (fl. 275), Roman
geographer.
De Memorabilibus Mundi or Polyhistor,
112, 701.
Solon (c. 638-c. 558 b.c), Athenian legis-
lator and poet, 16, 256, 379, 394, 732.
Fragments (of poems), 190.
Song o/Songs, see Bible.
Sopater (fl. 534), Greek sophist, 256, 488
(ter), 491, 503, 589, 739.
Controversies, 454, 455—6.
Scholia ad Hermogenis Status, 267.
Sophocles (c. 495-405 b.c), Greek tragic
poet.
^>x, 139,450,453,455,458.
Antigone, 107 (ter), 125, 140,450 (bis),453.
Creusa (cited by Stobaeus), 610.
Hippodamia, 362.
Oedipus at Colonus (Oedipus Coloneus),
366,379,531,534-
Oedipus the King (Oedipus Rex), 6$6.
Philoctetes, 611,621.
Trachinian Women (Trachiniae), 56, 265.
Soto, Domingo (1494-1560), Spanish Do-
minican and theologian, 493.
De Justitia et Jure Libri X, 173, 175,
176 (bis), 178, 179, 180, 182, 193, 260,
269, 324, 326, 363, 369, 373, 431 (bis),
432, 433, 565, 579 0>is), 58°, 592 0>is),
618,627,693.
De Ratione Tegendi et Detegendi Secre-
tum, 592.
So-zomen (Sozomenos Hermias, b. c. 400),
Greek ecclesiastical historian.
Ecclesiastical History (Historia Ecclesias-
tica), 109.
Spanorchius, Horatius, author of :
De Interregno Poloniae Anno 1587 Divi-
natio (in Philippus Honorius, Thesaurus
Politicus, 161 7), 319.
Spartianus, Aelius (3d or 4th century),
Latin biographer, 316.
Caracalla (Antoninus Caracalld), 451.
Hadrian (De Vita Hadriani), 85, 121,
217, 299.
Pescennius Niger, 561-2, 785.
Septimius Severus (Severus), 299, 645, 680.
Speculum, see Durandus, William.
Speculum Saxonicum, 257, 267, 299, 308, 326.
Statius, Caecilius, see Caecilius Statius.
Statius, Publius Papinius (c. 6l-c. 96),
Roman epic poet.
Achilleid (Oxford), 593.
Silvae (Oxford), 147, 735, 753, 833.
Thebaid (Oxford), 438 (bis), 439, 450,
45i, 452, 455, 457, 53i, 593, 636, 645,
736.
Stephen VI, Pope (d. 891), cited in the
Concilia Galliae, 707.
Stobaeus, Joannes (fl. 500), Greek antho-
logist, 14, 17, 143, 165 (ter), 241, 255,
270, 272, 332, 353, 362, 372, 379, 449,
452, 455, 458, 462, 465, 468, 475, 476,
477, 483, 488, 49°, 491, 498, 50I> 53°,
532, 538, 585 (bis), 588> 605, 610 (bis),
611, 616, 643, 762, 774, 775, 820.
Strabo (c. 60 b.c-c. 24 a.d.), Greek geo-
grapher.
Geography (Geographica, Leipzig, 1895),
47, 79 (bis), 103 (bis), 105, 106 (quater),
112, 116 (bis), 119 (bis), 121, 123, 125,
132, 137, 198, 200 (bis), 201, 202, 204,
214 (bis), 215 (bis), 217, 219, 237, 253
(bis), 256, 273, 279 (bis), 287, 297, 302,
3i3, 353, 434, 449, 459, 484, 499, 5">,
511, 527, 542, 563 (ter), 564 (bis), 571,
631, 653, 675, 70°, 7"» 736, 752, 769,
775,780,819.
Straccha, Benevenutus (fl. 1550), Italian
jurist, 325.
Suarez, Francisco (1548-1617), Spanish
Jesuit and theologian.
De Legibus ac Deo Legislatore, 159, 223,
383, 565.
926
Index of Authors Cited
Suarez, Rodericus (fl. 1494), Spanish jurist.
De Usu Maris, 668.
Suetonius Tranquillus, Gaius (b. c. 70),
Roman historian.
< of the Twelve Caesars (Vitae Duo-
decim Caesarum, Loeb) :
ustus, 97, 213 (bis), 357, 380, 575.
Julius Caesar, 546, 678, 771, 772, 835.
Caligula, 112,324.
Claudius, 358.
Domitian, 145.
rro, 658.
Tiberius, 376.
Titus, 388.
Grammarians (De Illustribus Grammaticis
et de Claris Rhetoribus, Loeb), 255.
Suidas (fl. 970), Greek lexicographer.
Lc.xicon, 81, 149, 169, 737, 754, 784.
Sulpicius Rufus, Servius (c. 106-43 b.c),
Roman jurist, cited by Cicero, 701,
Sylvester Mazzolini (also Mozolini and
Prierias, 1460-1523), Italian Domini-
can and theologian.
Summa Syhestrina, Quae Summa Sum-
marum merito nuncupatur : On the
word bellum, 91, 98, 99, 165, 166, 171,
172, 176, 179, 182, 268, 350, 402, 403,
404, 552, 556, 585, 592, 594, 600, 607,
609, 686, 689, 696, 719 (bis), 752, 758,
760, 790, 791, 807.
On the vvord commodatum, 426.
On the word homicidium, 175, 178.
On the word iuramentum, 365.
On the word metus, 334.
On the word Papa, 506.
On the word repressalia, 628.
On the word restitutio, 324, 334, 603.
On the word sepultura, 457.
On the word servitus, 768.
On the word societas, 359.
On the word vindicta, 467.
Sylvius (Piccolomini), Aeneas (1405-1464),
later Pope Pius II, Italian historian.
History 0} the Council of Basel (Historia
Concilii Basiliensis), 252.
Symmachus, Quintus Aurelius (d. c. 402),
Roman orator and statesman.
Letters (Epistulae), 207, 367, 380, 387
(bis), 492.
Synesius of Cyrene (378-c. 430), bishop and
neo-Platonist, 724.
Letters (Epistolae), 148, 483.
Synod of Seville, 486.
Syrianus (d. c. 450), Greek philosopher.
On Hermogenes (Scholia ad Hermogenis
status), 267.
Syring, Petrus (d. 1653), German philo-
sopher.
De Pace Religionis in Imperio Romano
contra Franciscum Burckhardum, 386.
Syrus, Publilius, see Publilius Syrus.
Tacitus, Publius Cornelius (c. 55-after 117),
Roman historian.
Agricola (Loeb), 277, 279, 775, Jj6.
Annals (Annales, Oxford), 47, 112, 115,
118, 129 (bis), 139, 144, 187, 202, 221,
235, 245, 299, 312, 318, 422, 440, 446,
450, 451, 455, 463, 465, 470, 472, 497,
508, 532 (ter), 548, 561, 575, 591 (bis),
612, 622, 632, 636, 645, 648, 650 (bis),
651, 652, 656, 658, 659, 660, 684, 687
(bis), 691, 698, 722 (bis), 731, 736, 740,
771,772,774,777,786,832.
Germany (Oxford), 105, 112, 115, 126,
128 (ter), 130, 217 (bis), 219, 237, 255,
287, 300, 344, 393, 549, 632, 651, 744,
765-
Histories (Historiae, Oxford), 69, 74, 106,
110, 126, 135 (ter), 142, 144, 151, 162,
197, 198, 201, 312, 364, 388 (bis), 398,
440, 452, 473, 511, 547 (bis), 550, 556,
57*> 573, 575, 612 (bis), 632, 645, 650
(bis), 654, 661 (ter), 686, 692 (bis), 738,
77h 773, 775, 7*6, 832.
On Orators (Dialogus de Oratoribus,
Oxford), 476.
Tacticus, Aelianus, see Aelianus Tacticus.
Talmud, compilation of the Jewish Mishna
and Gemara, 747.
On the King, 46, 672, 686.
On Marriage Deeds (Ketuboth), 482.
On the Sanhedrin, 46.
Tanchuma bar Alba, a rabbinical commen-
tator, 587.
Targum, Chaldean, paraphrase of the Old
Testament, 399 ; see also Onkelos.
Tartagni, Alessandro, see Alexander 01
Imola.
Tatian (b. c. 120), Syrian apologist.
Oratio adversus Graecos (Migne), 84.
Tatius, Achilles, see Achilles Tatius.
Tedeschi, see Panormitanus.
De Tenuris Angliae, see Littleton, Sir
Thomas de.
Terence (Publius Terentius Afer, c. 195-
159 b.c), Latin comic poet.
Index of Authors Cited
927
Terence {continued)
Brothers {Adelphi), 74, 559, 611, 649,
794-
Andria, 568, 767.
Eunuch, 297, 331, 446, 516, 560, 561, 630,
701.
Hecyra, 144, 440, 469.
Phormio, j66 (bis).
Self-Tormentor {Heauton Timorumenos) ,
104, 325.
Tertullian (Quintus Septimius Florens
Tertullianus, c. 160-c. 240), Latin
Father of the Church, 610.
Against the Nations {Ad Nationes), 518,
592, 660.
An Answer to thejews {Adversusjudaeos),
10,25,47,517.
Apology {Apologeticum), 84 (bis), 85 (bis),
H4> 145, i53> 160, 371, 487, 518, 592,
658 (bis), 697, 765.
Exhortation to Chastity {De Exhortatione
Castitatis), 82, 642.
On Fastings {De Jejuniis), 338.
The Flight in Persecution {De Fuga in
Persecutione), 89.
Prescription against Heretics {De Prae-
scriptionibus adversus Haereticos), 43.
On Idolatry {De Idololatria), 82 (ter), 83,
87,89,588. _
Against Marcion {Adversus Marcionem),
75, 77, 242, 268, 40I> 479> 512 (bis),
541, 615 (bis), 642, 694.
On Modesty {De Pudicitia), 49, 411, 617,
701.
On Monogamy {De Monogamia), JJ, 82,
542.
De Oratione, 464.
On the Pallium {De Pallio), 313.
On Patience {De Patientia), jj, 96, 479.
On Penitence or Repentance {De Poeni-
tentia), 143, 482.
On the Resurrection of the Flesh {De
Resurrectione- Carnis), 20, 311, 411,
453>522,589.
To Scapula {Ad Scapulam), 82, 145.
Scorpiace {Adversus Gnosticos Scorpiace),
518, 800.
On the Soldier^s Chaplet {De Corona
Militis), 38, 82 (bis), 83, 85, 563.
On the Soul {De Anima), 25, 82, 187, 194,
589.
De Spectacuhs, 81-2.
To His Wife {Ad JJxorem), 247, 497, 498,
642.
1569-27 3
Tessaurus, Anthony, see Thesaurus, Caspar
Antonius.
Testament, New and Old, see Bible.
Theano (fl. 540 b.c), Greek philosopher
and wife of Pythagoras,
Letters {Epistolae), 765.
Themistius (c. 315-c. 390), Greek rhetori-
cian.
Orations {Orationes), 18, 213, 214, 492,
570,591,728,729.
On the Soul (in Paraphrases Aristotelis
Librorum Quae Supersunt, Leipzig,
1866), 459.
Theocritus (fl. 270 b.c), Greek pastoral
poet.
Idyls (Loeb), 213 (bis).
Theodoret (c. 393-c. 457), bishop of Cyrus,
theologian and historian, 47.
Ecclesiastical History {Historia Ecclesias-
tica), 109, 145, 3 14.
Graecarum Affectionum Curatio, 468.
On Providence {De Divina Providentia),
199.
Theodoric the Great (c. 454-526), King of
the Ostrogoths.
Edict {Edictum Theodorici of 512, a code
of criminal law), 91, 348, 405, 522 (bis),
709.
Theodosian Code {Codex Theodosianus), com-
pilation of imperial constitutions or-
dered by Theodosius II and published
in 438, superseded by Code ofjustinian
in Corpus Iuris Civilis, 28, j6, 249
(ter), 248, 249, 252, 355, 438, 474.
Theophanes, one of two Byzantine his-
torians (d. 578 or c. 758-817), 215, 659.
Theophilus (6th century), Roman jurist,
one of the compilers of the Digest and
Institutes of Justinian.
Institutes {Paraphrasis Institutionum, a
Greek version of Justinian's Institutes),
107, 209 (bis), 531, 666, j66.
Theophrastus (c. 374-287 b.c), Greek
philosopher.
On Laws, 142 (cited in Digest), 332.
Theophylactus (fl. 1078), Greek exegete.
On St. Matthew, 96.
Thesaurus, Caspar Antonius (fl. 1626),
Italian jurist.
Thesaurus Quaestionum Forensium, 252.
Thessalonians, see Bible.
Thomas Aquinas, St. (1 227-1 274), Italian
Dominican philosopher, theologian and
doctor of the Church, 493.
928
Index of Authors Cited
Thomas Aquinas, St. (continued)
Summa Theologica (the second part of the
second part is cited as Secunda Secun-
dae), 39, 162, 166, 173, 193, 223, 257,
268,299. 7, 350,365,369,373,
376, 387, 397, +3i> 43»i 433 (bis), 465,
467, 470, 518, 556, 563, 600, 601, 607
(ter), 611, 618 (bis), 624, 770, 821.
Thomas Grammaticus (i6th century),
Italian jurist.
Decisiones Neapolitanae, 291, 670, 673.
de Thou, Jacques Auguste (1553-1617),
French historian.
History of His Own Time (Historiae Sui
Temporis), 158 (bis), 203, 216, 220,
264, 287, 289, 419, 443, 533, 555, 603,
605, 650, 667, 670, 702, 759, 817.
Thuanus, Jacobus Augustus, see de Thou,
Jacques Auguste.
Thucydides (471-c 401 b.c), Greek his-
torian.
De Bello Peloponnesiaco Libri VIII, 9
(bis), 17, 19, 59, 101, 104, 106, 113,
115, 130 (bis), 134 (bis), 136, 142, 173,
174 (bis), I9I, I92, 201, 213 (bis), 215,
225, 249, 283, 316 (ter), 360, 394 (bis),
395, 4°3, 4°5 (bis), 410, 411, 412, 415,
416 (bis), 417, 440, 445 (ter), 466, 473,
488, 496 (bis), 521, 526, 546 (quin-
quies), 562 (quater), 571 (bis), 581
(bis), 583, 584, 606, 631, 634 (bis), 637,
646 (bis), 648, 649, 659, 678, 703, 718,
722, 724, 727, 728 (bis), 730, 731, 736
(bis), 739, 750 (bis), 752, 754, 759, 766,
774, 77^ 786, 795, 810 (bis), 814, 817,
822 (bis), 827, 835, 837, 853.
Tiberius Decianus, see Decianus, Tiberius.
Tibullus, Albius (c. 54-c 19 b.c), Roman
elegiac poet.
Carmina (Loeb), 79, 211.
Timothy, see Bible.
Tiraqueau, Andre (Andreas Tiraquellus,
c 1480-1558), French jurist.
De Legibus Connubialibus et de Jure
tali, 414.
De Jure Primogenitorum, 290, 291.
Titus (d. c 371), bishop of Bostra in Arabia
and exegete, 96.
Titus, see Bible.
Toledo, Francisco (15 32-1 596), Spanish
Jesuit and theologian.
Summa Casuum Conscientiae Absolutissima,
373, 397, 618.
Toledo, Roderick o(,see Roderick of Toledo.
Toletus, Franciscus, see Toledo, Francisco.
Torquemada, Juan de (1 388-1468), Spanish
Dominican and canonist.
On Decretals, 388.
Toschi, Domenico, Cardinal (1535-1620),
Italian jurist.
Practicae Conclusiones Juris in Omni Foro
Frequentiorum, 99, 131, 261, 285, 420,
552,841.
Tostado, Alonso (c 1400-145 5), Spanish
exegete and bishop of Avila (hence
called Abulensis), 618.
OnMatthew, 355, 553.
Trebatius (Caius Trebatius Testa, ist
century b.c), Roman jurist, cited by
Gaius in the Digest, 297.
Trebellius Pollio, see Pollio, Trebellius.
Treutler, Hieronymus (d. 1607), German
jurist.
Disputationes Selectae ad Ius Civile
Justinianeum, 386.
Trogus, Pompeius(ist century b.c), Roman
historian, whose work is extant only in
the epitome of Justin (q.v.), 280 (bis),
283,472,510,697,770,830.
Trovamala, Baptista (d. 1484), Italian
canonist, also called de Salis and de
Rosellis.
Summa BaJ>tistiniana or Summa Rosella,
556.
Tryphoninus, Claudius (3d century), Ro-
man jurist, cited in Digest.
Disputationum Libri XXI, 254, 321 (ter),
323, 374, 425, 673, 703, 704, 7°5 (bis),
706,709,767,809.
Tudeschis, Nicolo de, see Panormitanus.
Tullius, see Cicero, Marcus Tullius.
Turrecremata, Joannes a, see Torquemada,
Juan de.
Tuschus, Dominicus, Cardinal, see Toschi,
Domenico, Cardinal.
Ulpian (Domitius Ulpianus, c 170-228),
Roman jurist, cited in the Digest.
Ad Edictum Libri LXXXI, 39, 54, 56,
72, 181, 193, 222, 223, 307 (bis), 326,
387, 391, 410, 418, 432, 451, 507, 537
(bis), 590, 623, 771, 845.
Institutionum Libri II, 248, 249, 257,
309,630,632,659,713,767.
De Officio Proconsulis Libri X, 438, 457.
Opinionum Libri VI, 209, 216, 630.
Ad Sabinum Libri LI , 222, 272, 311, 322,
371,642,692, 800, 829.
Index of Authors Cited
929
Ulpian (fl. 310), Greek rhetorician.
On Demosthenes, 181,215.
Urbicus, Aggenus, see Aggenus Urbicus.
Ursinus, Fulvius (Fulvio Orsini, 1529-
1600), Italian scholar, editor of Selec-
tions on Embassies, 25 1 .
Valdes, Spanish theologian, perhaps Alfonso
or Juan de Valdes, 397.
Valens (c. 328-378), Roman emperor of the
East.
Cited in the Code, 97.
Cited by John of Antioch, 156.
Valentia, Gregorio de (1551-1603), Spanish
Jesuit and theologian.
On II. ii of Thomas Aquinas (Commen-
tarii Theologici), 173, 624, 761.
Valentinian (419-455), Roman emperor.
Cited in the Code, 248, 252.
Novel, 711 (bis).
Valerius Flaccus (Gaius Valerius Flaccus
Balbus Setinus, d. before 90), Latin
epic poet.
Argonautica, 139, 729.
Valerius Maximus (ist century), Roman
historian.
Factorum et Dictorum Memorabilium
Libri,nS, 120, 122, 130, 133,202,211,
213, 225, 269, 272, 336, 347, 407, 412,
422 (bis), 447, 451, 456, 503, 505, 528,
529, 576, 652, 654, 655, 683, 691, 702,
720, 736, 774, 779, 781, 793, 797, 799,
800, 827, 846, 857.
Van Reyd, Everard (1 550-1602), Dutch
historian.
Dutch History (in Dutch ; Latin version
by Dionysius Voss), 604 (bis).
Varro, Marcus Terentius (116-28 b.c),
Latin author, 19, 833 (bis).
Age Modo, 189-90.
On Farming (De Re Rustica Libri III),
187, 111, 217, 241, 680, 751, 766.
On the Latin Language (De Lingua
Latina), 255, 309, 430, 438, 638, 66j.
Vazquez, Gabriel (1551-1604), Spanish
Jesuit and theologian.
On II. i of Thomas Aquinas (Commen-
tarius et Disputationes), 558 (bis), 559.
Vazquez Menchaca, Fernando (d. c. 1559),
Spanish jurist, 29.
Illustrium Controversiarum Aliarumque
Usu Frequentium Libri VI, 44, 176,
177, 179, 220, 228 (bis), 229, 263, 264,
344, 383 (bis), 384, 385, 385-6, 426,
3
486, 493 (bis), 506, 579, 627, 720, 805,
806, 807 (bis).
De Successionum Creatione, 376, 426.
Vegetius, Flavius Renatus (5th century),
Latin writer.
Rei Militaris Instituta, 86, 371, 410.
On the Veterinary Art (Mulomedicina),
751.
Velleius Paterculus, Caius, see Paterculus,
Caius Velleius.
Venuleius, see Saturninus, Venuleius.
Vergil, see Virgil.
Vicerius, Conrad, see Conrad Vicerius.
Victor, Aurelius, see Aurelius Victor, Sextus.
Victor Vitensis (b.c. 430), an African bishop.
Persecution of the Vandals (Historia Per-
secutionis Africanae Provinciae, Tem-
poribus Geiserici et Hunerici Regum
Wandalorum), 87, 287, 520, 841.
Victor of Utica, see Victor Vitensis.
Victoria, Franciscus de (c. 1480-1546),
Spanish Dominican and theologian,
22, 205.
Relectiones Theologicae XII :
De Indis (Classics of Int. Law), 201,
204, 401, 506, 550 (ter), 551, 553,
558, 581, 584 (bis).
On the Law of W ar (De Iure Belli,
Classics of Int. Law), 98, 99, 103, 178,
54°> 556, 55«, 560, 563, 564, 565,
567, 587, 59°> 592 (bis)> 599 (quater),
600, 628, 696, 723, 730, 735, 736,
74°> 743, 745 (bis)> 757 (quater),
758, 760, 761, 770 (bis).
De Potestate Civili (Salamanca, 1565),
159, 249.
De Potestate Papae et Concihi (Sala-
manca, 1565), 387.
Victorinus, Marius (Gaius Marius Victori-
nus Afer, 4th century), Latin rhetori-
cian, Commentarius in Ciceronis Libros
de Inventione, 427.
Virgil (Publius Vergilius Maro, 70-19 b.c),
Roman epic poet.
Aeneid, 104, 156 (bis), 169 (bis), 196, 201,
202, 214, 243, 247, 283, 395, 439, 454,
455, 456, 525, 564, 583, 605 (ter), 606,
649 (quater), 660 (bis), 673, 674, 675,
678, 731, 735, 829, 832, 833, 857.
Ciris, 649.
Eclogues, 378.
Georgics, 126, 189, 190, 203, 212, 452.
Visigoths, Law of the, see Law of the Visi-
goths.
Q2
930
Index oj Authors Cited
Vitruvius Pollio, Marcus (ist century b.c),
Roman writer on architecture.
De Architectura LibriX, 189, 313, 752.
Vopiscus, Flavius (3d or 4th century), Latin
biographer, 316.
Aurelian, 785 (bis).
Probus, 123, 317 (bis).
Tacitus, 119.
Vulcacius Gallicanus (36I or 4th century),
Latin biographer.
Avidius Cassius, 540, 570, 722, 789.
Vulgate, Latin version of the Bible from
theHebrew, 76, 618.
Wacher, Martin (Matthaeus VVacker von
Wackenfels, I7th century), German
jurist.
Consilia Caesarea in Controversia Saxo-
nica, 252.
Warnefrid, Paul, see Paulus Diaconus.
Wehner, Paul Matthias (d. 161 2), German
jurist.
Consilia Franconica, 6\J.
Wesenbeck, Matthaeus (1531-1586), Fle-
mish jurist.
Commentarius in Pandectas, 252.
Isagoge in Institutiones, 686.
Wild, Johann (Joannes Ferus, 1494-15 54),
German Scriptural exegete, 20.
Wilhelmus Matthiae, see Matthiae, Wil-
helm.
William of Newburgh (11 36-1 198), English
Augustinian and historian.
History of England (De Rebus Anglicis),
114.
Wipo (Wippo or Wibo, nth century),
Burgundian chronicler.
Life of Conrad Salicus (Gesta Chuonradi
II Imperatoris), 318 (bis).
Wisdom, see Bible.
Wittekind (ioth century), German chroni-
cler.
History of Saxony (Res Gestae Saxonicae),
279, 290, 291, 318, 319, 449, 649.
Xenophon (c. 444-c 357 b.c), Athenian
historian and general, 453.
Agesilaus (Loeb), 698, 738, 792.
Anabasis (Loeb), 106, 143, 174, 194, 195,
197, 217, 250, 445, 471, 686 (bis), 785,
785.
The Cavalry Commander (Hipparchuus,
Loeb), 605.
On the Constitution of Athens (Respublica
Atheniensium), 764.
Greek History (Hellenica, Loeb), 261, 321,
348, 395, 45i, 53i, 569, 574, 625, 666,
755,781,783,817.
Memorabilia of Socrates (Loeb), 240, 241,
272, 514, 610, 616, 618, 664.
Symposium (Loeb), 514.
On Taxes (De Vectigalibus), 66"/.
Training of Cyrus (Cyropaedia, Loeb),
37, 52, 73, 122, 230, 283 (bis), 509, 562,
605, 616, 618, 635, 664, 665, 681, 686,
737, 750, 759, 769, 772, 776, 788, 821.
Ximenes, Rodrigo, see Roderick of Toledo.
Xiphilinus (nth century), Greek monk,
epitomizer of the History of Dio Cas-
sius, 85, 106, 107, 110, 144, 148 (bis),
152, 314, 320, 388, 496, 550, 563, 588,
648, 657, 724, 728, 729, 742.
Zabarella, Francesco (1 360-141 7), Italian
canonist, archbishop of Florence and
cardinal, hence cited as Cardinal.
On Clementines (Lectura super Clemen-
tinis), 175.
Consilia, 201.
Quaestiones, 173.
Zachariah, see Bible : Old Testament :
Zachariah.
Zasius, Ulrich (1461-1536), German jurist.
Apology against Eck (Apologetica Defensio
contra Joannem Eckium), 851.
On Decretals, 426.
On Digest, 252, 426.
Singularia Responsa, 123.
Ziegler, Caspar (1621-1690), German
jurist.
Conclusiones ad Auream Praxim Calvoli,
135.
Zoanettus,Franciscus(i6thcentury),Italian
jurist, professor at Ingolstadt.
De Imperio Romano Eiusque Iurisdictione,
264.
Zonaras, Joannes (d. 1130), Byzantine
theologian and historian, 87.
History (Epitome Historiae), 86, 118, 121
(bis), 185, 253, 290, 291, 299 (bis), 314
(bis), 317, 318, 388 (bis), 400, 440, 460,
493, 506, 518, 528, 531, 535, 549, 576,
577,579,654,7°3(bis),842.
Zosimus (5th century), Greek historian.
History (Historiae), 276, 283, 364, 368,
397, 440, 447, 518, 555, 648, 654 (ter),
703 (ter), 724, 753.
SUBJECT INDEX
Abandoned property:
acquisition of, 218-9, 225-6
definition of, 223-4
presumptions of, 221-2
Abdication:
effect of, upon right to make war, 157
of throne succession, 288-9
Acceptance of promise necessary for vali-
dity, 338
Accession, Roman principle of, 306-7
Acquisition, derivative. See Alienation
Acquisition, original:
by law of nations, 295 ff.
character of, 206
Acquittal, right of, 250
Acts:
division of, 343
indispensable for human life, 203
of mixed character, 346
reciprocal, 343-4
Acts, permissible. See Permissible acts
Adoption of children, right of, 255
Adultery:
damage incurred by, 434-5
law of Christ regarding, 235
Aiding enemy. See Supplying the enemy
Air, control of use of, 190, 209
Alienation :
by legal compensation, 267-8
consent of people necessary for, 263-4
effect of, upon right to make war, 137
of right, 260
of sovereignty, 261-2
public domain not subject to, by king, 264
Alliance, unequal:
definition of, 1 30
leadership of, 134-5
Alliances. See also Treaties :
aid rendered under, 404
breach of, 405
effect of, upon right to make war, 417
future, 415-6
of Christians, 403
renewal of, 405
Allies :
attack on, 817
breach of treaty by, 815
killing of unwilling, 723 ff.
meaning of term, 415-6
share in booty, 684-5
Allodial land, succession of, 284
Alluvial deposits :
belong to people in case of doubt, 302-3
distinguished from islands, 304
law of nature regarding, 300-1
rights of those nearest to, 303
Roman law regarding, 299-300, 305
when property of vassals, 304-5
Ambassadors. See also Embassy ; Legation
admissibility of, 440-1
defence against, 444
inviolability of, 438, 441 ff., 445-6
legal status with regard to enemy destina-
tion, 446
legal status with regard to friendly des-
tination, 445-6
retaliation against, 447
rights of, extended to suite, 447-8
rights of, extended to movable goods, 448
safe-conduct of, 840-1
Ambuscade, threat of, and the right to kill,
Animals, liability of owner for damages
caused by, 437
Animals, wild:
acquisition of ownership of, 192
considered as king's property, 297-8
ownership of, in parks, 296
possession acquired by appliances, 297
recovery of ownership of, 296-7
right to kill, 476
Aptitude, defined, 35-6
Arbitration:
to end war, 823 ff.
to obviate war, 185, 561-2
Armistice. See Truce
Arms. See Weapons
Assassins, use of, against an enemy, 653-4
Associations :
dividing and joining of opinions in, 250-1
order of rank in, 252
right of majority in, 249-50
voting in, 252-3
Asylum. See also Refuge :
granting of, to exiles, 820
Authority, civil:
acquired by war, 697-8
mixed, 699
Authority, intermediate governmental,
when held absolutely, 120
932
Subject Index
Baggage, extension of safe conduct to, 840
Bailment, gratuitous, 343
Beginnings of war, 169
Birds, acquisition of ownership of, 192
Blood relations, marriages of, 242 ff.
Booty. See also Plundering:
acquisition of, 672 ff., 684 ff.
disposal of, by commanders, 675 ff.
peculation in distribution of, 682-3
Brigands. See also Pirates:
distinction between state and, 631-2
transformation of, into a state, 632-3
Brothers and sisters, illegality of marriage
of, 242
Buving and selling, right of, 203-4
Canons, synodical :
bearing of, upon law of nations, 27
Capital punishment :
a proof of the legality of war, 66-7, 69
attitude of Christian emperors toward,
85-6
legality of, 78, 84
Captives :
enslavement of, 690 ff.
escape of, 693-4
law of nations regarding, 695-6
pledges of, 853-4
property of, 691, 699-700, 843
ransoming of, 841 ff.
right to injure, 649, 650
sparing of, 737-8
Capture:
after peace, 812
of movable property, 666-7, 672 ^ •
of territory, 667
Captured property. See Enemy Property
Causes of war:
distinction between just and unjust,
. 73°-;
distinction between justifiable and per-
suasive, 546-7
distinguished from beginnings, 169
doubtful, 559 ff.
efficient, 164-5
justifiable, 169 ff.
persuasive, 547-8
Causes of war, just:
defence, 171
injury received, 170
punishment, 171
recovery of property, 171
Causes of war, unjust:
advantage apart from necessity, 549
desire for freedom among subject people,
5.5 *
desire for richer land, 550
desire to fulfil prophecies, 555
desire to obtain something not legally
owed, 555-6
desire to rule others against their will,
.551
discovery of property of another, 550
effect of, upon justice of entire war,
718-9
fear of neighbouring power, 549
refusal of marriage, 550
title to universal empire of Church,
.553
title to universal empire of Roman em-
peror, 551-2
Chastity:
comparable to life, 175
defence of, justifiable, 175
of celibacy, more praiseworthy than mar-
riage, 642
suicide to preserve, 460
Children:
of slaves, 256-7, 768
restraining, 232
right of succession of, 271-2
right of, to inherit parents' property,
269-70
rights of illegitimate, 273, 282
rights of parents over, 231 ff.
rights of unborn, effect of abandonment
upon, 226-7
selling of, 232-3
sparing of, in war, 734-5
Christ, law of. See Law of the Gospel
Christian religion :
misinterpretation of, as a cause for war,
518-9
mistreatment of those who practise, as a
cause for war, 517-8
non-acceptance of, as a cause for war,
516-7
Circumcised and uncircumcised foreigners
distinguished in Hebraic Law, 46-8
Civil power, characteristics of, 101
Civil war. See Rebellion
Combat, single, to obviate war, 183, 563-4
Combats, set, to end war, 820 ff.
Combatants, definition of, 839
Commanders. See also Military leaders:
right of disposal of booty by, 675 ff.
Commerce, freedom of passage for, 199-200
Commodate, definition of, 355
Subject
! Index 933
Community:
Cousins, marriage of, 247-8
duration of right to inflict punishment
Crime :
on, 535-6
causes of, 494-5
members of, share in its crime, 534-5
causes restraining, 495-6
responsibility of, for crime of individual,
community responsibility for, 523 ff.
523 ff.
distinction between occasion and cause as
responsibility of, for refuge afforded
regards, 538
wrongdoers, 526 ff.
duress as an element of, 622
Community of property:
fear as an element of, 173-4
explanation of, 186
inclinations toward, 497-8
becomes ownership by division or occu-
Crimes against God:
pation, 189
as a cause for waging war, 598 ff.
Compacts, division of, into personal and
punishment of, 513-4
real, 418-9
Compensation, as substitute for specific
Damages:
performance, 800-1
definition of, 430-1
Concubinage:
effect upon contracts, 801
among Jews, 274
extent of, 43 1
legality of, 247-8
liability for, by adultery, 434-5
Conduct, safe:
liability for, by animal or vessel, 437
annulment of, 841
liability for, by civil authorities, 436-7
extension to baggage, 840
liability for, by deceit or fear, 435-6
extension to persons, 840
liability for, by homicide, 434
interpretation of right of, 839-40
liability for, by robbery, 435
Conference, to obviate war, 560-1
liability for, by sureties, 629
Conflicts, documentary, settlement of,
liability for, primaryand secondary,432~3
427-8
obligation to make good, 430
Conjectures:
remission of, if caused by war, 810-11
broadening the meaning of, 421-2
resulting, 433-4
from effect, 412
to income, 431-2
from elements, 412
to reputation and honour, 437
from reasonable motive, 412-3
Debts:
from subject-matter, 41 1-2
cancellation of, by war, 811
resort to, in case of ambiguous or contra-
liability for, of others, 623
dictory expressions, 41 1
liability of subjects for ruler's, 624
restricting the meaning of, 423 ff.
liquidation of, under law of nature, 627
Conqueror, rights of, 319
non-legal, 555-6
Conquered. See Vanquished
seizure of goods for, 626
Conquest. See Causes of war, unjust
seizure of persons for, 625
Contracts:
Deceit. See also Ruse:
classes of, 343 ff.
effect of, upon liability for damages,
equality required in, 346 ff.
435-^
ofkings, 383-4,429
Declaration of war :
of kings as binding on heirs, 386-7
according to law of nature, 634-5
of kings as laws, 385-6
according to municipal law, 637-8
of usurpers as binding on kings, 390
against enemies' allies, 638
right to make exclusive, 205
against violator of right of embassy, 640
rights of, 35-6
conditional and absolute, 635 ff.
writing as necessary element of, 428
form of, 593
Controversies, between citizens of allied
in perfect war, 624
states, 132-3
includes subjects of sovereign, 638
Conventions, public, division of, 391
interval between, and hostilities, 639-40
Corporations, right to sue members of, for
procedure of, among Romans, 172
corporation debt, 623
reason for public, 639
934
Subject Index
Defence :
against person useful to state, 176
as just cause of war, 171
in public war, 184
of chastity, justifiability of, 175
of life, justifiability of, 175
of limb, justifiability of, 175
of property, according to Hebraic law,
180
permissibility of refraining from, 176
Dependence, mutual, between king and
subjects, iii
Dependent persons. See also Subjects:
defence of, in an unjust war, 595
imposition of taxes on, for non-service in
war, 594
right of decision concerning war, 587 ff.
right of decision in doubtful cases, 590 ff.
surrender of innocent, to prevent war,
579
war in behalf of, 578
Descendants, order of succession of, 282-3
Desert places, possession of, by foreigners,
202-3
Deserters :
killing of, 647
punishment of, 160
receiving, 622
Desertion of post, penalty for, 149
Devastation:
extent of legality of, 745 ff.
of sacred enemy property, 75 1 ff.
Dictator, as possessor of sovereignty, 114
Disinheritance:
effect of, on succession to property, 273
effect of, on throne succession, 288
Disowning, effect of, on succession to pro-
perty, 273
Divorce, according to law of nature and law
of the Gospel, 234-5
Domain, eminent. See Eminent domain *
Domain, public:
inalienability of, by king, 264
right of pledging, 265
Doubt:
course to be followed in case of, 559-60
influence of judgment on, 558-9
source of, in moral questions, 557-8
Duress, as an element of crime, 173-4, 622
Embassy. See also Legation; Ambassador:
admissibility of, 440
breach of right of, as a cause of war, 640
Eminent domain:
acquisition of, 219
right of subjects subordinate to, 385,
796-7, 807
Ending war:
by arbitration, 823 ff.
by lots, 820
by set combats, 820
Enemies:
acts permissible against, 599 ff., 788-9
declaration of war against allies of, 638
definition of, 630
good faith between, 804
harming, without orders, 791
lying to, 618, 620-1
remission of punishment of, 731 ff.
right to injure, 647 ff.
seizure of goods of, on ships, 668
enforcement of right, by violence, 625-6
Enemy property:
acquisition of, under law of nations,
664 ff.
acquisition of, under law of nature, 663-4
captured in unlawful war, 778-9
occupation of, for subsequent debt,
758-9
sacred, 658 ff., 751 ff.
seizure of, for debt, 757-8
seizure of, for punishment, 758
seizure of, on ships, 668
seizure of, taken from others, 668 ff.
seizure of, tempered with humanity,
759-60
treatment of, 658 ff.
Escheat, right of, 219
Exchange, a form of contract, 345
Excuse for war, 170
Exemptions from military service, 165-6
Exiles:
illegality of State's claim over, 254
receiving, 819-20
Extortion, obligation of restoration after,
327
Faculty, definition of, 35
Faith, good. See also Promises :
between enemies, 804
implied, 857 ff.
in war, 802-3
keeping of, 800 ff.
of private person in war, 852-3
to preserve peace, 860
with enemies, 792-3, 799-800, 851
with pirates and tyrants, 793-4, 851
Subject Index
935
False accusation, threatened, extent of de-
fence against, 174
Falsehood :
character of, when unpermissible, 613-4
in commerce, 609, 613
nature of, 611-12
permissibility of, 609 ff.
permissibility of, before infants and in-
sane persons, 614
permissibility of, before third persons,
6l5. . . .
permissibility of, by speaker of superior
right, 616-7
permissibility of, when person wishes to
be deceived, 615-6
refraining from, more noble, 620-1
to an enemy, 618-9
to save life of innocent person, 617
unpermissibility of, in oaths, 619-20
unpermissibility of, in promises, 619
Family rights, extinguishment of, 310
Farmers, sparing of, in war, 737
Fathers-in-law, illegality of marriage of,
with daughters-in-law, 242
Fear as a cause of wrongdoing, 173-4, 622
Feudal tenure, sovereignty in, 1 36-7
Fiefs :
sovereignty in, 137
succession of, 284
Fish:
acquisition of ownership of, 192
ownership of, in ponds, 296
Force :
use of, as an element of crime, 173-4, 622
use of, as punishment, 600
use of, to secure rights, 91
Foreigners :
as enemies, 646
right of, to acquire desert land, 202
right of, to acquire residence, 201-2
right to seek marriage with, 204
rights of, 204-5
Formalities :
in declaring war, 637-8
Fowling, control of, 190
Friendship :
acts contrary to, 818-9
origin of, in nature, not necessity, 177
Gain, obligation to restore, from another's
property, 322
Garrisons, necessity of, for security of
victors, 772-3
Generals :
power of, over subordinates, 847-8
power of, over territory taken in war, 849
power of, to accept surrender, 850
power of, to make peace or truce, 848
God:
duties of Christians toward, 1 3
existence of, presupposed by natural law,
13-14
generally accepted ideas concerning,
510-11
judged by right reason, 40
suspension of natural law by, 40
Goods, enemy. See Enemy property
Gospel, law of the. See Law of the Gospel
Government :
separation of powers of, 101 ff.
types of, 107 ff.
Grants, revocability of, of kings, 389-90
Guilty, sparing of, in war, 742
Harbours, ownership of, 209-10
Hebraic law. See Law, Hebraic
Hebrew writers, bearing of, upon law of
nations, 27
Heirs :
extension of punishment to, 544—5
liability of, 545
rights of, 319
History, bearing of, upon law of nations, 26
Holy orders, exemption of men in, from
military service, 166
Homicide, liability ior damages by, 434
Honour :
liability for damage to, 437
sense of, applied to slavery, 718
sense of, things forbidden by, 716-7
Hostages :
as pledges, 856
escape of, 829
obligation of, 830-1
release of, 829-30
right to injure, 651, 828-9
selection of, 828
sparing of, 742-3
Hostile acts, distinction between public and
private, 671-2
Husband:
marriage of, with wife of another void,
239
power of, over wife's oaths, 376
right of, over wife, 234
right to sue, and wife, for debts, 623
93^
Subject Index
Idolatry in Roman army, 87-8
Impunitv:
in killing women and children in war, 648
in public war, 643 ff.
in slaying deserters, 647
of captives, 649-50
of suppliants, 650
Independence:
non-permanence of right of, 229-30
Individuals, acts permissible against enemy
by, 788-9
Infants:
killing of, in war, 648
permissibility of lying before, 614
right of, regarding ownership, 208, 231
Infeudation, as conditional alienation, 263
Inheritance, kingdom as part of, 284
Injure, right to:
assassins, 653 ff.
captives, 649-50
deserters, 647
in territory of enemy, 646
innocent persons in war, 648, 733 ff.
moral justice of, 723-4
subjects of enemy, 647
suppliants, 650
unwilling allies, 723 ff.
when unpremeditated, accidental or
through ignorance, 725 ff.
women and children in war, 648, 733 ff.
Injury, as a cause of war, 170, 172, 186
Innocent persons, sparing of, in war, 733-4
Insane persons:
permissibility of lying before, 614
right of, regarding ownership, 208
Insurance:
as a form of contract, 345
valuation of, 358
Interest:
advantages similar to, 357
civil law concerning, 358
forbidden by law of nature, 355-6
Interpretation:
broad and narrow, 413, 421-2
conjectured from effect, 412
conjectured from reasonable motive,
conjectured from subject-matter, 41 1-2
of ambiguous and contradictory expres-
sions, 41 1-2
of technical terms, 410
of words, 409-10
restricting the meaning, 423 ff.
rules regarding, 414-5
Interregnum, in Rome, 129
Inundation, ownership of land not lost by,
301-2
Inviolability, personal, of king, 15 1-2
Islands:
occupation of, 192
ownership of, by law of nature, 300-1
ownership of, in Roman law, 299-300
Israelites, laws of. See Law, Hebraic
Jewish law. See Law, Hebraic
Joint undertakings for maritime operations,
advantages of, 359
Just, definition of term, 38
Justice:
attributive, definition of, 37
contractual, 36
difference between attributive and ex-
pletive, 37
distributive, 37
expletive, 36
influence of consciousness of, upon war,
19-20
restorative, 37
sense of, attributed to brute creatures, 42
Kill, right to :
as alternative to escape, 179
assassins, 653 ff.
captives, 649-50
deserters, 647
in defence of limb, 175
in defence of property, by law of nature,
179
in defence of property, by law of the
Gospel, 182
in territory of enemy, 646
in war, 644-5
in war, reason for, 650-1
innocent persons in war, 648, 733 ff.
moral justice of, 723-4
robbers or thieves, 92, 476
subjects of enemy, 647
suppliants, 650
thief at night, 92
to avoid indignity, 178
to ward off blow, 178
under Jewish law, 477
unwilling allies, 723 ff.
when injury unpremeditated, accidental
or through ignorance, 725 ff.
wild animals, 476
women and children in war, 648, 733 ff.
Subject
Index 937
Kings :
relationship to natural law, 48 ff.
acts of, 381-2
relationship to law of the Gospel, 48 ff.,
as in absolute power, 115 ff.
61 ff.
as not absolute, 119-20
Law, human, division of, into three classes,
division of power of, 125 ff.
44
division of sovereignty of, 123-4
Law, municipal:
inviolability of person of, 15 1-2
definition of, 44
legal character of contracts of, 385-6
distinguished from law of nations, 24
obedience of subjects of, mandatory,
distinguished from law of nature, 24, 192
\39-40
founded on natural law, 1 5
obligation of, to contracts, 383-4
on injuring the enemy, 788-9
obligation of, to contracts of usurpers, 390
on interest, 358
obligation of, to oaths, 381-2
on parental power over children, 233-4
obligation of, to promises, 12 1-2, 383
on postliminy, 707-8, 713
obligation of, to refrain from war for sake
origin of, 14-15
of self and dependents, 570-1
Law, natural. See Law of nature
obligation of heirs to contracts of, 386
Law of nations :
obligation of successors to contracts of,
acquisition of property captured under,
386-7
664 ff.
regents for, 120-1
definition of, 44
revocability of grants of, 389-90
distinguished from law of nature, 24
right of, to make peace, 804-5
distinguished from municipal law, 24
right to make war against, 156 ff.
distinguished from Roman law, 28-9
right to make war to prevent alienation of
early writers on, 22-3
kingdom by, 157
existence of, proof of, 44
yielding of right by, to avoid war, 569-70
existence of, reason for, 17-18
necessity of treating, 9, 20 ff .
Land, unoccupied:
on assassins and spies, 654-5
occupation and ownership of, 19 1-2
on captives, 695-6
right of passage over, 196 ff.
on capture, 666 ff.
Law:
on declaration of war, 634-5, 637
as a body of rights, 35
on enemy property, 658 ff., 664 ff.
as a rule of action, 34
on interval between declaration and war,
as a statute, 38
640
effective even without sanction, 16
on prisoners of war, 690-1
necessary for every association of men, 17
on public and private hostile acts, 671-2
not founded on expediency alone, 17
on rape, 656-7
not in abeyance in war, 18-19
on right of embassy, 438-9
origin of, 10 ff.
on right of sepulchre, 450 ff.
Law, divine:
on right to injure enemy, 647-8, 788-9
definition of, 45
on sacred enemy property, 658-9
division of, into universal and particular,
on seizure of property acquired by enemy,
+5.
668-9
particular, binding on Jewish people, 45
on use of poison in war, 65 1 ff.
particular, not binding on non-Jews, 45-6
origin of, 15
Law, equatorial, 35
relationship of Hebrew writers to, 27
Law, Hebraic:
relationship of history to, 26
given by God, 45
Law of nature :
not binding on non-Jews, 45 ff,
apparent changeability of, 40
not opposed to war, 57 ff., 75
corroborated by sacred history, 14
on defence of property, 180
definition of, 38
on enslavement, 103
distinguished from divine law, 39, 507
on killing, 477
distinguished from law of the Gospel, 61
on rebellion, 140
distinguished from Hebraic hw, 48 ff.
93«
Subject Index
Law of nature (ccntinued)
distinguished from law of nations, 23-4, 41
distinguished from municipal law, 24,
192, 385
distinguished from national customs, 507
distinguished from volitional law, 38-9
existence of, proof of, 23-4, 42 ff.
extends to acts of the human will, 39
evident provisions of, 507-8
on acquisition of possession and owner-
ship through another, 670-1
on declaration of war, 634-5
on divorce, 234
on enemy property, 663-4
on injuring the enemy, 788-9
on interest, 355
on killing in defence of property, 179
on liquidation of debts, 627
on marriage without parental consent,
237-8
on monopolies, 353
on occupation of movables, 207-8
on ownership of islands, 300-1
on parental power, 233-4
on polygamy, 234
on rebellion, 139-40
origin of, 13
perpetual, 49
presupposes existence of God, 13-14
reinforced by expediency, 15
rights granted by, 203
unchangeable, 40, 49
written in hearts of men, 47
Law of the Gospel:
not opposed to war, 63 ff.
on divorce, 234-5
on the permissibility of private war, 93
on right to kill in defence of property,
182
relationship of, to Hebraic law, 48 ff ., 61 ff.
relationship of, to natural law, 61
Law of war. See also Law of nations :
acts permitted by, 643 ff.
definition of, 34
on acquisition of property captured in
war, 663-4
on right to injure suppliants, 649-50
on right to injure women and children,
648-9
on right to pillage and destroy sacred
property, 659-60
Law, rectorial, 35
Law, Roman:
bearing of, upon law of nations, 28-9
on enslavement, 103
on ownership of islands, 299-300
Law, volitional:
definition of, 38
division into human and divine, 44
divine, definition of, 45
divine, promulgation of, 45
Lawful war. See War, lawful
League of Christians against enemies of
Christianity, 403
Legation, right of. See also Ambassadors;
Embassy:
extent of exercise of, 439-40
importance of, 449
origin of, in law of nations, 438-9
Letters of marque, 626-7
Lie. See Falsehood
Liege-fiefs. See Fiefs
Liquids. See Sea
Loss, distinction between direct and in-
direct, 537-8
Loss of power by king, 156 ff.
Lots, drawing of, to end war, 563, 820
Majority, rule by, 249-50
Management, called pretence, by Greek
fathers, 609
Mandate, execution of, 423
Marriage:
definition of, 234
of parents with children void, 239-40
parental consent to, in law of nature,
237~8
permissibility of, 642
refusal of, as a cause for war, 550
right to seek, in foreign country, 204
validating of unlawful, 248-9
with blood relations forbidden, 242 ff.
with husband or wife of another void, 239
with other relatives, 245-6
Materials, mingling of. See Accession
Merchandise in transit, taxability of, 200-I
Merchants, sparing of, in war, 737
Migration, rights of people not destroyed
by> 3H
Military leaders. See also Commanders:
acts of, contrary to instructions, 846-7
obligation of supreme authority for pro-
mises of, 846-7
promises of, 845
Military service. See also War:
attitude of early Christians toward, 82 ff.
Mingling of materials. See Accession
Money, as a medium of exchange, 354
Subject Index
939
Monopolies, according to the law of nature,
353
Moses, law of. See Hebraic law.
Mothers-in-law and sons-in-law, illegality
of marriage of, 242
Movable property:
capture of, 666-7
capture of, by private act under muni-
cipal law, 673
capture of, by public act, 673-4
current rule on, 712 ff.
earlier rule of postliminy of, 712
effect of seizure of, in war, 672-3
not belonging to enemy, 688-9
possession of, prevention of, 207-8
Municipal law. See Law, municipal
Mutuum, definition of, 355
Natural law. See Law of nature
Necessity:
as a cause of war, 599-600
effect of, upon private ownership, 193
extreme, resistance in case of, 148-9
Neutrals :
duty of, toward belligerents, 786-7
property of, 783 ff.
New Testament, relationship of, to law of
nations, 27
Oaths :
acts contrary to, 375-6
construction of, 367-8
effects of, 372
falsehood in, 619
force of, 362-3
hindering moral good, 368-9
in name of false gods, 371-2
in name of God, 370, 375
intelligibility necessary for, 363-4
intention necessary for, 363
obligation of kings to, 381, 382
of subject, power of superior concerning,
37^-7 . '
procured by fraud, obligation of, 366-7
rights acquired by, 372-3
teachings of Christ against taking of,
377-8 ,
to brigands, obligation of, 795-0
to faithless person, 374
to God alone, obligation of heirs toward,
375 M .
to perform an act temporanly lmpos-
sible, 369-70
to perform an impossible act, 369
to perform an unlawful act, 368-9
to person not wishing to have it kept,
obligation of, 375
to pirate or tyrant, 373-4
unsworn pledges of good faith as, 380
Obedience :
to father, 587 ff.
to superiors, 141 ff., 153 ff.
to usurpers, 159
Obviation of war. See War, prevention of
Occasions for war, just, 169
Occupation:
definition of, 190-1
of movable things, prevention of, 207-8
of rivers, 208-9
twofold character of, 206-7
Officials, public, authorization of public
war by, 98-9
Offspring, ownership of, 306
Old men, sparing of, in war, 734-5
Old Testament, relationship of, to law of
nations, 27
Opinions, combination and separation of,
250-1
Orators, relationship of, to law of nations,
26
Ownership :
abandonment of, 220 ff.
by infants, 208
by insane persons, 208
by prescription, 220
by usucaption, 220
community of, over soil and crops, 308
distinction of, from sovereignty, 207
obligation arising with, 320 ff.
of alluvial deposits, 299-300
of birds, 192
of fish, 192, 296
of islands, 299-300
of offsprings, 306
of sea, 190 ff.
of treasure trove, 298-9
of wild animals, 192, 296
right of private, 35, 186 ff.
termination of, 310
transfer of, in sale, 352-3
Pardon:
permissibility of, 489-90
permissibility of, after establishment of
penal law, 491-2
permissibility of, exceptions to, 491
permissibility of, prior to penal law,
490-I
940
Subject Index
Parents :
marriage of, with children void, 239 ff.
power of, by law of nature and municipal
law, 233-4
property of, right of children to, 269-70
sins of, acts of God against children for,
sins of, punishment of children for, 5 39-40
restraint of children by, 232
right of, to sell children, 232-3
rights of, over children, 231
Parley, good faith in, 857-8
Partnership, kinds of, 358-9
Passage, right of, over land and rivers, 196 ff.
Patronage, effect of, on independence, 132
Peace :
alienation as the price of, 805-6
duty of preservation of, 576-7
interpretation of covenants of, 808-9
obligation of people to terms of, 806-7
right to make, in a democracy, 805
right to make, in kingdom, 804
violation of, 814 ff.
Peculation in distribution of booty, 682-3
People, loss of rights of the, 310 ff.
Perfect war. See War, perfect
Permissible acts in war:
against prisoners, 761-2
against slaves, 761 ff.
against those supplying the enemy, 601 ff.
by law of nature, 599-600
during truce, 835—6
illegality and impunity of, 641 ff.
to harm enemy, 643-4
Persons, rights over, 230 ff.
Philosophy, relationship of, to law of
nations, 24-6
Pillaging, permissibility of, 680-1
Piracy, restrictions against, 215
Pirates:
distinction between people acting un-
justly and, 631-2
good faith with, 793-4
obligation of oaths to, 373-4
property captured by, recoverable with-
out postliminy, 713
Pledges:
as security for specific performance, 603
by sureties, 623
of private persons in war, 851 ff.
prohibition of taking of, in time of Jus-
tinian, 623
Pledging of state, consent of people neces-
sary for, 263
Plot, right to kill to escape, 174
Plundering, against Christian laws, 790-1
Poets, relationship of, to law of nations, 26
Poisoning :
of enemies, permissibility of, 651-2
right to kill to escape, 174
Pollution of waters, 653
Polygamy, permissibility of, in law of the
Gospel and law of nature, 234
Possession. See also Usucaption:
acquisition of, 192
acquisition of, over wild animals by
appliances, 297
as controlling factor in case of doubt,
564-5
effect of loss of, upon ownership of wild
animals, 296-7
types of, 206-7
Possessions of subjects, liability of, for
ruler's debts, 624
Postliminy:
acquisition of, by a people, 707
changes in, introduced by municipal law,
713
definition of, 701-2
enforcement of, current, 714-5
existence of, in peace and war, 703 ff.
non-acquisition of, by those who sur-
render, 706
originofterm, 701
practice of, among non-enemies, 713-4
recoverability without, 713
recovery of rights by, 705-6
recovery of slaves by, 709-10
recovery of subjects by, 710
recovery of territory by, 711
regarding movable things, 712
under municipal law, 707-8
Power :
by contract, 35-6
over oneself, 35
over others, 35
over property, 35
Prescription. See Usucaption
Pretence, permissibility of, 607 ff.
Pretexts for war, 169
Prevention of war. SeeWar, prevention of
Price, estimation of, 351-2
Priests, sparing of, in war, 736-7
Primogeniture, right of, 280
Prisoners of war :
acts permissible against, 761-2
enslavement of, under law of nations,
690-1
Subject Index
941
Prisoners of War (continued)
permissibility of capture of, 761
pledges of, 853-4
power over, 691
ransom of, 769
return of, by postliminy, 703-4
sparing of, 737-8
unpermissibility of killing innocent, 763
Private war. See War, private
Proclamations, public, of war, 603
Promises :
acceptance of, 338
acquisition of right by, 330-1
bare assertions not, 330
by proxy,_ 340
confirmation of, by oaths, 797-8
division of, 41 3-4
for act of another, 342
in person, 336-7
in war, 798-9
invalidation of, by misapprehension,
333-4
legal effects of, 330
liability for damage caused by, through
deceit or fear, 435
liability of owners for, of ship captains
and business agents, 337-8
moral effects of, 328-9
obligation of, invalid, 341
obligation of king for, 381-3
obligation of promisor, 409
perfect, 332-3
possibility of execution of, 335
revocability of, 338 ff.
through agency of others, 337
through fear, 334-5, 795-6
to do illegal act, 335-6
to obtain thing already due, 336
to subjects under right of eminent do-
main, 796-7
to third persons, 798
to tyrants and pirates, 793-4
without cause, 341-2
Property:
acquisition of, under law of nations and
municipal law, 808
ancestral, ownership of, where there is no
will, 275 ff.
classification of, 186
community of, among x\merican tribes
and Essenes, 187
first division of, 189
liability for surrendered, in arranging
peace, 807
obligation to restore, to owners, 320-1
of captives, 691, 699-700
private origin of, 186
redemption of, 831
responsibility for, lost in war, 807-8
seizure of, 599-600
seizure of, in war, 667-8
Property, enemy. See Enemy property
Puberty, parental control of children
during, 232
Public domain. See Domain, public
Public war. See War, public
Punishment :
acts non-injurious to human society not
subject to, by man, 489
advantage of, 469-70
causes for suspension of, 492-3
definition and origin of, 462-3
degree of, 600, 795
determination of, 465-6
effect of circumstances of crime upon,
502
exclusion of repentance by infliction of,
483-4
for crimes against God, 513-4
for impiety to gods, 521
harmonic proportion of, 499-500
implied remission of, 859
in the law of the Gospel, 478 ff.
infliction of, as a just cause of war, 171,
502 ff.
infliction of, method of, 466-7, 470 ff.
internal acts not subject to, by man, 487
measure of, 494, 498-9
mitigation of, clemency in, 501-2
mitigation of, in regard for others, 500
of children for parents' sins, 539 ff.
of heirs, 544-5
of individuals for another's crimes, 539
of individuals for community's wrong,
544
of individuals for good of the whole,
475 ff.
of pirates and tyrants, 794-5
of rebellious subjects, 796
of relatives of wrongdoer, 543
of subjects for king's wrongs, 543-4
opportunity to sin may urge its, 500
rejection of incomplete classifications of,
48+~5 , • • • ,
relation of, to expletive justice, 463-4
remission of, 731 ff., 811, 859
right of executioners to inflict, by divine
law, 486-7
942 Subjecl
! Index
Punishment (continued)
Restitution. See also Property, recovery of;
right to inflict, by private persons, 485-6,
Reparation; Restoration:
811
in unjust war, 719-20
right to inflict, on a community, 535-6
obligation to make, for war, 719
sharing of, without sharing crime, 537
Restoration. See also Property, recovery
sharing of, with those sharing in crime,
of; Reparation; Restitution:
522
agreement to make, 810
supenor strength of one exacting, 574-5
in doubtful cases, 782
unavoidable acts not subject to, by man,
in war, 195-6
488
obligation of, cessation of, 781-2
yielding of right to inflict, to prevent
of another's property, after destruction,
war, 568-9
3H
of another's property, after extortion, 327
of another's property, after gift, 325
Ransom:
of another's property, after purchase, 326
of prisoners, 769, 841 ff.
of another's property, after receipt for
prohibition of, 842
shameful cause, or obligated service,
Rape:
327
defence against, permissibility of, 175
of another's property, after sale, 325
distinction in Hebraic law between, in
of another's property, origin of obliga-
country and city, 181
tion, 320-1
permissibility of, in war, 656-7
of gain from another's property, 322-3
Rebellion :
of income from another's property, 324
in case of necessity, 148-9
of peoples, 781
in self-defence, 151
of property of unknown ownership, 326
unpermissibility of, by early Christians,
of property unlawfully taken by enemy,
l4H-5
778 ff.
unpermissibility of, for subordinate offi-
of things captured in war, 812-3
cers, 146 ff.
of things used in necessity, 195
unpermissibility of, in general, 139
Right to make war. See War, right to make
unpermissibility of, in Hebraic law, 140
Rights :
unpermissibility of, in the law of the
arising from origin and causes of war, 600
Gospel, 141
consequent to war, 600-1
Recovery of property, as a just cause of war,
definition of, 35
'71 .
disputed, in abeyance during war, 81 1-2
Redemption of property after loss, 831
distinction of, from manner of possessing
Refuge, responsibility of community for,
them, 11 3-14
afforded wrongdoers, 526 ff.
division of, 35-6
Regents :
legal, 35
modes of appointment of, 120-1
not lost by lapse of time, 230
necessity for appointment of, 137
obligation to yield, to prevent war, 567 ff.
right of, not revocable, 114
personal, 35
Religion, deprivation of, as a result of con-
private, 36
quest, 776
public, 36
Renting, rules of, 354-5
real, 35
Reparation. See also Property, recovery of;
to acquire necessities, 203
Restitution; Restoration:
Rights of people :
effect of, on defensive war, 185
division of, if divided, 315-6
Repentance, exclusion of, by punishment,
extinction of, when body of people is
483-4
broken up, 313
Reprisals. See Withernam; Letters of
extinction of, when essential parts are
Marque
destroyed, 312-3
Reputation, liability for damage to, 437
extinction of, when form of organization
Responsibility for war, 729-30
is destroyed, 3 1 3
Subject Index
943
Rights of people (cotitinued)
extinction of, when people ceases to
exist, 310-11
non-extinction of, by change of govern-
ment, 314-5
non-extinction of, by migration, 314
non-extinction of, if joined to others, 315
River beds, ownership of, 303-4
Rivers :
acquisition of, by occupation, 208-9
effect of change in bed of, on jurisdiction,
217-8
effect of change in course of, on juris-
diction, 216-7
ownership of, 209-10
right of passage over, 196 ff.
Robbery, liability for damage by, 435
Roman Empire, possessor of the rights of
the, 316-7
Roman law. See Law, Roman
Ruse or deceit in war :
in a negative action, 607
in a positive action, 607 ff.
permissibility of, 605-6
refusal to resort to, 621
seizure of enemy property by, 662
Sacred property of enemy. See Enemy pro-
perty
Saints, relationship of, to law of nations, 28
Sale:
completion of, 352-3
inequality in terms of, 360-1
Sanhedrin, organization and purpose of,
127-8
Schoolmen, relationship of, to law of
nations, 28
Scripture, Holy, relationship of, to law of
nations, 26-7
Sea:
acquisition of part of, in Roman times,
209-10, 212 ff.
non-susceptibility of, of private owner-
ship, 190-I, 209 ff.
right of passage over, 196 ff.
tax on navigation of, 214-5
Seizure :
distinction under municipal law and law
of nations, 628-9
of goods for debt, 626
of persons for debt, 625-6
of persons, limitations upon, 628
of persons, sureties for, 629
1569.27 3
Self-defence:
as a just cause of war, 172
in civil law, 183
permissibility of, against actual aggressor,
J73 . . .
permissibility of, when danger is imme-
diate and certain, 173
right of, origin of, 172
rights and limitations of, in war, 600-1
Sepulchre, right of:
for public enemies, 455-6
in case of criminals, 457
in case of suicides, 458 ff.
origin in law of nations, 450 ff.
Shores of sea, ownership of, 209-10
Simplicity of man in state of creation, 187
Single combat. See Combat, single
Slaughter of people, obligation to prevent,
573-4
Slavery:
kinds of, 258
voluntary, 103-4
Slaves:
acts permissible against, under moral jus-
tice, 761 ff.
children of, 256-7, 768
escape of, 693-4, 768
exemption of, from military service, 166
obedience of, 588-9
persons captured in war considered as,
690-1
recovery of, by postliminy, 709-10
resistance of, of master, 695
right over, 255-6
right to make, 718
savings of, 765 ff.
seizure of possessions of, 699
Sojourn, temporary, right of, 201
Sovereignty:
absolute, 115 ff.
acquisition of, 770
acquisition of, by long possession of
abandoned property, 227-8
acquisition of, over part of sea, 212-3
alienation of, 261 ff.
alienation of, for peace, 805-6
definition of, 103-4
disputes concerning, settlement of, 163
distinction of, from ownership, 207
division of, into subjective or potential,
123 ff.
exercise of, by one bound by feudal law,
136-7
exercise of, by one who pays tribute, 136
944
Subject Index
Sovereignty (continued)
illimitability of, by promises, 1 2 1
in case of usucaption, 228-9
location of, 112
location of, in unequal alliance, 1 30 fT.
loss of, by wrong-doing, 176
mixed, 125 fl.
non-absolute, 119
popular refutation of theory of, 103-4
right of, as distinguished from exercise of,
137-8.
termination of, 310
Spies, right to kill, 655
Spoils. See Booty
Sponsions :
distinction of, from treaties, 391-2
effect of knowledge and silencc upon obli-
gation of, 407-8
obligations of signers of, 405
of Caudine Forks, 405-6
State of nature, 187
State:
illegality of claim of, on exiles, 254
legality of withdrawal from, 253-4
right of, over subjects, 253
Status quo ante bellum, 809-10
Subjection:
public rights gained by, 258
resulting from crime, rights gained by,
.259
Subjects. See also Dependent persons:
liability of, for ruler's debts, 624
rebellion by, in law of nature, 139
war against, by sovereign, 138
Succession:
agnate lineal, 286-7
by nearness of relationship to first king,
286-7
cognate lineal, 285-6
decision in case of doubt regarding,
289-90
effect of disinheritance upon, 288
effect of abdication upon, 288-9
in fiefs and allodial land, 284-5
in hereditary kingdoms, 279 ff.
intestate, origin of, 269
laws concerning, 278-9
order of, 271-2, 290 ff.
vicarious, 272-3
Suppliants:
protection of, pending hearing, 533-4
right to injure, 649-50
rights of, 530
iparing of, 739-40
Supplying the enemy:
acts permissible against those, 601 ff.
treaties prohibiting, 603-4
Sureties, prohibition of, or pledge-taking,
623
Surrender:
conditional, 828
duty towards those who, 826 ff.
force of, 825-6
power of general to accept, 850
sparing of those who, 739-40
Taxation :
on merchandise in transit, 200-1
on those using sea, 214-5
Tcrritory:
acquisition of captured, 667
captured, ownership of, 672
disposability of, by general, 849
recoverability of, by postliminy, 710-1 1
Thief by night and thief by day, distinction
between, 180
Transit, right of. See Passage, right of
Treasure trove, ownership of, 298-9
Treaties. See also Peace; Truce:
application of, to usurper, 420
classification of, 393-4
continuance of, after king's expulsion,
420
differentiation of terms of, 817-8
distinction between personal and real,
418-9
distinction of, from sponsions, 391-2
equal, 394-5
implied approval of, 859
power to make, 804 ff.
restricting navigation, 215-6
sanction of, by oath, 797-8
unequal, 396-7
violation of, 814 ff.
with infidels, 397 ff.
Tributes, exaction of, from vanquishcd, 773
Truce. See also Peace; Treaties:
acts of citizens to violate, 839
acts permissible during, 835-6
definition of, 832 ff.
duration of, 834-5
obligation of, 835
return of person held by jorce majeure
after, 837
special agreements in, 838
violation of, by one side, 838
Tyrants, maintcnance of good faith with,
793-4
Subject Index
945
Unfairness, as a just cause of war, 170
Unjust, definition of, 34
Unjust wars. See Wars, unjust
Use of another's property:
in case of necessity, 193 ff.
in case of war, 195
innocent, 196
restoration after, 195
Useless fighting, obligation to avoid, 743-4
Usucaption or prescription:
objections to, 224-5
obligation of sovereign power regarding,
228-9
right of, 220 ff.
Usufruct, king's right of, 114, 116
Usurpers :
limitation of resistance against, 161-2
obligation of obedience to extent of, 159
resistance of, by mandate of sovereign,
161
resistance of, by pre-existing law, 160
right to resist, 160
Vanquished :
change in form of government of, 774
clemency towards, 776-7
degree of liberty left to, 775-6
moderation in exercising sovereignty
over, 770 ff.
Vengeance, prohibition of, extent of,
467-8, 478
Vessels, liability of owner for damage caused
by,437
Vice, as conceived by Greek philosophers,
25-6
Virtue:
as conceived by Greek philosophers,
25-26
defence of, permissibility of, 175
Voting:
in associations, 249 ff.
pro rata, 252-3
War:
apparent opposition of Holy Writ to,
explanation of, 70 ff.
as the enforcement of rights, 18
attitude of early Christians toward, 81 ff.
definition of, 33-4
division of, into public and private, 91
evils of, 576-7
influence of consciousness of justice upon,
19-20
not against Hebraic law, 57 ff.
not against law of nations, 57
not against law of nature, proved by
reason, 51 ff.
not against law of nature, proved from
general agreement, 55-6
not against law of nature, proved from
sacred history, 54-5
not against law of the Gospel, 63 ff,
origin of word, 33-4
perfect, method of declaration of, 624
prosecution of, within bounds of law and
good faith, 18
resort to, time for, 575-6
War, causes of. See Causes of war
War, end of :
by arbitration, 823 ff.
by lots, 820
by set combats, 820
War, prevention of :
by arbitration, 561-2
by conference, 560-1
by lot, 563
by single combat, 563-4
War, prisoners of. See Prisoners of war
Wars, just:
occasions for, 164
possibility of justice on both sides of,
565-6
Wars, lawful :
declaration of, 633-4
defined, 630
limitations in, 722-3
Wars of robbers, persuasive causes of, 547-8
Wars of savages, lack of cause for, 547
Wars, private :
defence of, 92
legality of, 91
permissibility of, in the law of the Gospel,
93
Wars, public :
declarationof, 633
definition of, 630
effects of, 641
formal, 97
include permission with impunity, 643-4
less formal, 97-8
relation of, to private wars, 791
right to booty in, 689
support necessary for, 633
unjustifiability of, by one giving just
cause, 185
unjustifiability of, to weaken neighbour's
power, 184
946
Subject Index
. public (continucJ)
unjustifiability of, without causc, 170
waging o{, bv authority of public ofticial,
98-9
punitive:
for crimes against God, 509 ff.
injustice of, against thosc anwilling to
ept Christian religion, 516-7
injusticc of, against thosc who misinter-
prct divinc law, 518-9
justicc of, against thosc who show im-
picty toward gods, 5:1
justice of, against those who treat Chris-
tians cruclly, 51 7-8
. rcligious:
foi crimcs against God, 508 ff.
injustice of, against thosc unwilling to
accept Christian rcligion, 516-7
injusticc of, against those who misintcr-
prct Christian doctrincs, 518-9
justice of, against those who mistrcat
Christians, 51 7-8
\\ ar, right tomake:
against king who abdicates, 157
-t king who alienates kingdom, 157
against king who has lost kingdom by vio-
lation of commissory law, 158
against king who is enemy of his own
people, 157-8
against king who posscsses only part
sovercignty, 158
against ruler wlio violates laws, 156
where people have reserved right ofresis-
tancc, 158-9
Wars, unjust:
paymcnt of tax in licu of scrvicc in, 594
pcnalty for engaging in, 600, 718-9
rcstitution in, 719-20
right of subjects to refose to serve in,
^cr\icc in, justicc of, 595
Watcr, running. See also Sea:
passage over, 196 ff.
riglit to usc, 196, 209
Waters:
poisoning of, prohibition of, 652-3
pollution of, prohibition of, 653
Wcapons:
poisoning of, prohibition of, 652-3
supplying cnemy with, 602
Wife:
marriage of, with husband of anothcr
void, 239
oaths of, powcr of husband ovcr, 376
right of husband ovcr, 234
right to sue, and husband, for debts, 623
Wild animals, ownership of, 192
Wills:
right to make, 265-6
transfer of sovereignty by, II 7-8
Withcrnam, definition of, 623, 626
Women and childrcn:
pcrmissibility of killing in war, 648
sparing of, in war, 601, 734-5
THE CLASSICS OF INTERNATIONAL LAW
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of Introduction by Ernest Nys, and an Index of Authors Cited by Herbert F. Wright.
38a + x + 2o8 pages.
Gentili, Alberico: Hispanicae advocationis libri duo. 2 vols. New York, 1921. [No. 9
of the series.] Price, $5.00.
Vol. I. A Photographic Reproduction of the Edition of 1661, with an Introduction by Frank
Frost Abbott and a List of Errata. 443 + xvi + 274 pages.
Vol. II. A Translation of the Text, by Frank Frost Abbott, with an Index of Authors by
Arthur Williams. I2a + x + 284 pages.
Grotius, Hugo: Dejure belliac pacis libritres. 2 vols. [No. 3 of the series.] Price, both
volumes, 2% guineas in Great Britain, $12.50 in United States ; Vol. II only, i| guineas
in Great Britain, $7.50 in United States ; Vol. I not sold separately ; Vol. II consists ol
three books, each bound separately.
Vol. I. A Photographic Reproduction of the Edition of 1646, with a portrait of Grotius.
Washington, 1913. xxiv + 663 pages.
Vol II ATransIation of the Text, by Francis W. Kelsey, with the collaboration of Arthur E. R.
Boak, Henry A. Sanders, Jesse S. Reeves, and Herbert F. Wright, with an Introduction
by James Brown Scott, Indexes, and List of Editions and Translations. Oxford, 1925.
Legnano, Giovanni da: De bello, de repraesaliis et de duello. Edited by Sir T. Erskine
Holland. i vol. Oxford, 1917. xxxiii + 458 pages. [No. 8 of the series.] Outofprint.
1. Collotype of the Bologna Manuscript of cttxa 1390, with Extended and Revised Text of
Same, Introduction, List of Authorities Cited, &c, by Sir T. Erskine Holland, together
vvith Photograph of Legnano's Tomb.
2. A Translation of the Text, by J. L. Brierly.
3. A Photographic Reproduction of the First Edition (1477 .
Rachel, Sarauel : De jure naturae et gentium dissertationes. Edited by Ludwig von Bar.
2 vols. Washington, 1916. [No. 5 of the series.] Price, $4.00.
Vol. I. A Photographic Reproduction of the Edition of 1676, vvith portrait of Rachel, Intro-
duction by Ludwig von Bar, and List of Errata. i6a + x + 335 pages.
Vol. II. A Translation of the Text, by John Pavvley Bate, with Index of Authors Cited.
i6a + iv + 233 pages.
Textor, Johann Wolfgang: Synopsis juris gentium. Edited by Ludvvig von Bar. 2 vols.
Washington. 1916. [No. 6 of the series.] Price, $4.00.
I. A Photographic Reproduction of the First Edition (1680;, vvith portrait of Textor,
Introduction by Ludvvig von Bar, and List of Errata. 28a + vi + 148 + 168 pages.
VoL II. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited.
26a + v + 349 pages.
Vattel, E. de: Le droit des gens. 3 vols. Washington, 1916. [No. 4 of the series.] Price,
$8.00.
Vol. I. A Photographjc Reproduction of Books I and II of the First Edition (1758), with
portrait of Vattel and Introduction by Albert de Lapradelle. lix + 541 pages.
Vol. II. A Photographic Reproduction of Books III and IV of the First Edition (1758).
xxiv + 376 pages.
Vol. III. A Translation of the Text, by Charles G. Fenwick, with Translation (by G. D.
Gregory) of Introduction by Albert de Lapradelle. Ixxxviii + 398 pages.
Victoria, Franciscus de : Relectiones : De indis and De iure belli. Edited by Ernest Nys.
1 vol. Washington, 1917. 500 pages. [No. 7 of the series.] Price, $3.00.
1. Introduction by Ernest Nys, and Translation of Same, by John Pawley Bate.
2. A Translation of the Text, by John Pawley Bate.
3. Revised Text, with Prefatory Remarks, List of Errata, and Index of Authors Citcd, by
Herbert F. Wright.
4. A Photographic Reproduction of Simon's Edition (1696).
Zouche, Richard : Juris et judicii fecialis, sive juris inter gentes, et quaestionum de
eodem explicatio. Edited by Sir T. Erskine Holland. 2 vols. Washington, 191 1.
[No. 1 of the series.] Price, $4 00.
Vol. I. A Photographic Reproduction of the First Edition (1650 , with Introduction, List of
Errata, and Table of Authors, by Sir T. Erskine Holland, together with portrait of Zouche.
xvi + 204 pages.
Vol. II. A Translation of the Text, by J. L. Brierly. xvii+ 186 pages.
(In Press)
Pufendorf, Samuel von: De officio hominis et civis juxta legem naturalem libri duo.
2 vols. [No. 10 of the series.]
Vol. I. A Photographic Reproduction ol the Edition of 1682, with an Introduction by Walthcr
Schiicking.
Vol. II. A Translation of the Text, by Frank Gardner Moore, with Translation of Introduction
by Walther SchQcking.
Wolff, Christian von : Jus gentium methodo scientifica pertractatum. [No. 13 of the series.]
1. Introduction by Otfried Nippold, and Translation of Same by Francis J. Hemclt.
2. A Translation of the Text, by Joseph H. Drake.
Photographic Heproduction of the Edition of 1764.
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